Top Memphis officials to be subpoenaed in residency lawsuit

The Shelby County Election Commission will subpoena Memphis Mayor Jim Strickland and City Attorney Jennifer Sink in a lawsuit over a five-year residency requirement for mayoral candidates.

Edward McKenney, attorney for the Election Commission, announced the move to subpoena the top city officials in a hearing Wednesday, during which Chancellor JoeDae Jenkins denied a motion to dismiss the suit.

McKenney also offered attorneys for plaintiffs Van Turner and Floyd Bonner, both mayoral candidates, a consent injunction, saying the Election Commission would agree not to enforce an opinion by attorney Robert Meyers, who also has been subpoenaed, that says the five-year requirement applies.

“We don’t care who runs for mayor of the city of Memphis,” McKenney said. “All we need to know is what the qualifications are, because we’ve got to administer the election.”

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So far, the city has declined to state an official position on the residency matter. In addition to the Meyers opinion, there are two opinions written by attorney Allan Wade which say the five-year requirement is no longer in effect.

McKenney said Sink is amenable to waive a 21-day requirement for subpoenas, but that Strickland is not willing to be deposed.

McKenney said he expects the city of Memphis to file a motion to quash the Strickland subpoena, which, if filed, is slated to be heard next week.

“If Ms. Sink testifies on the first that the Wade opinion is the city’s opinion, it’s over. We don’t care,” McKenney said.

In the hearing Wednesday, attorneys for Bonner, who is currently Shelby County Sheriff, and Turner, current Memphis NAACP branch president, thrashed the Election Commission for offering to agree to a consent injunction, saying Wednesday’s hearing should only focus on a separate motion to dismiss the suit filed by the Election Commission.

The offer for a consent injunction was “bad form” and an “ambush” since it was made in court in front of the media, said attorney Robert Spence, who represents Bonner.

Earlier this month, attorneys for the Shelby County Election Commission filed a motion to dismiss the lawsuit for lack of subject matter jurisdiction. That was the matter slated to be heard Wednesday and which attorneys for Turner and Bonner said should be focused on.

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Spence said there is a “dirty smell” wafting from the Election Commission and suggested that the offer of a consent injunction was to short-circuit depositions he and Turner’s attorney plan to do next week with members of the Election Commission and Linda Phillips, administrator of elections.

“The city is running. The Election Commission is running," Spence said. "Where did it come from? We are going to next week, when we put these folks under oath, start getting answers to who manufactured this fake controversy about a referendum that was passed 30 years ago.”

McKenney said the only reason attorneys for Turner and Bonner would deny a consent injunction, which he described as “the relief they’ve asked for,” is that they want something more, such as to preclude the Election Commission from ever enforcing an opinion of the city on residency in the future. And that, McKenney said, would be outside the court’s jurisdiction.

In their motion to dismiss, attorneys for the Election Commission wrote that the city of Memphis has declined to state an official position on the residency requirement, leaving the Election Commission without a clear path forward.

They have argued that if the city of Memphis is not made a party to the suit, any decision by the court will not be binding on the city and thus will not provide finality, potentially leading to future lawsuits by candidates running for mayor.

Jenkins previously declined to add the city of Memphis as a party to the lawsuit.

The lawsuits were originally filed separately by Turner and Bonner, but later were joined into one.

After Sink did not respond to an email asking whether the legal opinion drafted by Robert Meyers was the official position of the city, the SCEC removed the Meyers opinion from its website, according to the motion to dismiss.

The Election Commission’s website now notes that “The residency requirements for the office of Mayor are in active litigation.”

When asked for a comment on the pending subpoenaes, a representative of the city said it is standard practice for them to not comment on pending litigation.

A trial in the matter is scheduled for May 1.

Katherine Burgess covers government and religion. She can be reached at katherine.burgess@commercialappeal.com or followed on Twitter @kathsburgess.

This article originally appeared on Memphis Commercial Appeal: Memphis mayor, city attorney to be subpoenaed in residency lawsuit