Appear in court, 3 in Senate told

Hearing on Ford vote conflicts with session in Nashville

By Richard Locker
Commercial Appeal
January 24, 2006

NASHVILLE -- The three state senators from West Tennessee who voted to unseat Sen. Ophelia Ford received subpoenas Monday to appear at Wednesday's federal court hearing on whether the Senate can void the controversial special election.

Sens. Don McLeary, D-Humboldt, Mark Norris, R-Collierville, and Curtis Person, R-Memphis, were the only senators from the U.S. District Court's West Tennessee district who voted to void the Sept. 15 election -- which Ford won by 13 votes -- over irregularities in the balloting. U.S. Dist. Judge Bernice Donald issued a restraining order last Wednesday temporarily blocking the Senate from proceeding with its planned final vote the next day.

Ford and three Senate District 29 voters had filed a federal lawsuit to block the Senate's move on grounds their rights under the Constitution's due process and equal protection clauses and the federal Voting Rights Act would be violated.

In a court filing Monday, Ford's attorney, David Cocke, asked for an injunction banning the Senate from voiding the election, which put Ford in the Senate seat long held by her brother John Ford. The special election was called when John Ford resigned as a result of federal corruption charges from the Tennessee Waltz sting.

Judge Donald set a hearing for 8:45 a.m. Wednesday in her Memphis courtroom.

Donald was appointed to the federal bench about 10 years ago upon the recommendation of Ophelia Ford's brother, Harold Ford. Donald later administered the oath of office for Harold Ford Jr. when he was elected to succeed his father in the U.S. House.

Person and Norris, who are attorneys, said the subpoenas raise constitutional questions, including their inability to be present when the Senate convenes in Nashville only one hour and 15 minutes after the Memphis hearing starts.

Norris asked the state attorney general's office to move for Donald to quash the subpoenas. The attorney general is arguing for the Senate's right under the state Constitution to be the judge of the elections of its members. But the attorney general's spokeswoman, Sharon Curtis-Flair, said Monday she doesn't know if the office will seek to quash the subpoenas.

"What is happening is totally unprecedented and I'm very concerned about it," said Person. "I can't be in two places at one time and by being subpoenaed into federal court instead of participating in the special session on ethics, the 170,000 people I represent are being disenfranchised."

Norris and Person also cited a state constitutional provision regarding legislative immunity that provides "... and for any speech or debate in either House, they (state senators and representatives) shall not be questioned in any other place."

Said Norris: "The founding fathers set up equal branches of government and provisions against legislators from being taken into court to allow us to do our jobs for our constituents."

Cocke did not return telephone calls for comment, but in court filings Monday he argued the federal court does have jurisdiction over the case. He also added two District 29 voters as plaintiffs in the case, Louvenia Hampton and Naomi B. Tate.

Meanwhile, a Senate committee appointed to investigate the District 29 election is to make its final report and recommendation today on whether to uphold the election contest filed by Ford's Republican opponent, Terry Roland of Millington.

The committee's recommendations will be forwarded to the full Senate which, depending on the outcome of the federal court lawsuit, will settle the election issue.