IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE PART _____ PHILIP HOSTETTLER, ) Plaintiff, vs. ) No.

________________ ) METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, THE DAVIDSON COUNTY ELECTION COMMISSION, CHARLIE TYGARD, J. B. LORING, AND RONNIE GREER, Defendants. ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Introduction Pursuant to T.C.A.§29-14-101 et seq., Plaintiff submits the following complaint for declaratory judgment challenging the action of the Davidson County Election Commission, (hereinafter, “Commission”) an agency of the Defendant, Metropolitan Government of Nashville and Davidson County, Tennessee, (hereinafter, “Metro”), certifying candidates eligible for the “run-off” election for Metro Council “at large” seats. Pursuant to Tenn.R.Civ.P. 65, Plaintiff also request this Court to issue an injunction compelling the Defendants Commission and Metro to eliminate from the candidates for the Davidson County Council “at large” “run-off” election to be held September 11, 2007 (with early voting beginning August 22, 2007) the Defendants Tygard, Loring and Greer on the basis that Tygard, Loring and Greer are not eligible to participate in said election as a result of disqualification by Metropolitan Charter Section 1.07(A). Further, as a result of the disqualification of Tygard, Loring and Greer, Plaintiff should be placed on the ballot

as a candidate in said “run-off” election.

Parties 1. At all times material to the allegations contained herein, Plaintiff has been a resident of Davidson County, Tennessee. Plaintiff was a candidate for one of the five Metropolitan Council “at large” positions available through an election held on August 2, 2007. Plaintiff received the tenth (10) highest vote total of the twenty-six (26) candidates running. 2. The Defendant Metropolitan Government of Nashville and Davidson County (Metro) is a local government entity established by the laws of the State of Tennessee capable of being sued. 3. The Defendant Davidson County Election Commission is established by state law charged with the duties of, among other things, monitoring and supervising elections in Davidson County and determining the eligibility requirements of candidates. 4. The Defendants Charlie Tygard, J.B. Loring and Ronnie Greer are all residents of Davidson County, Tennessee who have all currently served over one term in the Metropolitan Council as “district” councilmen. Jurisdiction 5. Pursuant to T.C.A. §29-14-101 et seq., this Court has jurisdiction to entertain actions for declaratory judgments. Further, pursuant to Tenn.R.Civ.P. 65, this Court has the power to issue injunctive relief to compel the Commission to place upon the ballot for Metropolitan Council “at large” election to be held on September 11, 2007, the name of Plaintiff as a qualified candidate eligible for said election.

Facts 6. On August 2, 2007, an election was held in Davidson County, Tennessee, in which the voters of said County expressed their preference as to candidates for numerous offices therein. The offices relevant to the allegations contained herein were Mayor, Vice Mayor, District Councilmen and Councilmen “at large”. 7. The Metropolitan Government of Nashville and Davidson County, Tennessee is governed by a legislative body composed of 40 councilmen of which 35 serve individual districts within the County while 5 others serve the County as a whole. 3.01–see Exhibit A). Their term of office is 4 years. (Id.). 8. Section 1.07(A) of the Metropolitan Charter (Exhibit B) states: Effective January 1, 1995, no person shall be eligible to serve in any elected office authorized or created by the Charter of the Metropolitan Government of Nashville and Davidson County if during the previous two (2) terms of that office, the person in question has served more than a single term. Service prior to the passage of this measure shall not count in determining length of service. Judges are exempt from this provision. (Emphasis added). 9. The intent of the people in approving this “term limits” requirement was to prevent persons from qualifying for office and/or pursuing election for office within the Metropolitan Government if they had already been serving within an office more than a single term during the last 2 terms. This provision does not prevent an office holder from seeking another office after he/she has “sat out” a term. 10. Plaintiff has never held an elected office within the Metropolitan Government. Plaintiff qualified and was placed upon the ballot for the 2007 Metro Council “at large” election held on August 2, 2007. Plaintiff received the 10th highest vote total of 26 candidates. 11. Defendants Tygard, Loring and Greer were also candidates placed upon the ballot for the 2007 Metro Council “at large” election held on August 2, 2007. These Defendants all (Metropolitan Charter Section

received more votes than Plaintiff. (Tygard-4th; Loring-7th; Greer 8th). However, all three of these Defendants are currently serving as district councilmen for over one term. As a result of the prohibition set out in Metropolitan Charter Section 1.07(A), above, these Defendants are not eligible to serve another term in the Metropolitan Council until they at least “sit out” one term. 12. Ten percent of the total votes cast plus one allowed for a candidate for Council “at large” to be elected out right. Only one candidate, Tim Garrett, received this amount and therefore was elected to one of the five available seats. The remaining 4 seats will be determined by the next 8 candidates who received the highest vote totals, none of whom received the requisite 10 per cent. (Defendants Tygard, Loring and Greer are within those 8 candidates). The “run-off” election is set for September 11, 2007. Plaintiff and the two persons who received the next highest total of votes in the election of August 2, 2007 should be placed on the ballot for said “run-off” election since Defendants Tygard, Loring and Greer are not eligible. 13. In Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007), the Tennessee Supreme Court recently addressed an identical provision of the Knox County Charter related to term limits: Effective January 1, 1995, no person shall be eligible to serve in any elected office of Knox County if during the previous 2 terms of that office, the person in question has served more than a single term. Service prior to the passage of this measure shall not count in determining length of service. Judges are exempt from this provision. (Id. at 757). (Emphasis added--Knox County Charter §8.17). 14. The Tennessee Supreme Court went on to state with reference to the above provision which, even though it was placed on the ballot for approval by the voters in terms of a prohibition against an office holder serving more than two consecutive terms in the same office, that: The Knox County term limits amendment would broadly preclude service of more than two terms for “any elected office.” Whereas the 1994 ballot language referred to “hold[ing] the same elected office of Knox County Government,” the language of article VIII, section 8.17 of the amendment, taken verbatim from the actual citizen petition, prohibits “serv[ice] in any elected office of Knox County.”

15. Plaintiff notified the Defendant Election Commission, through its Director, Ray Barrett, on August 17, 2007 of the disqualification of the Defendants Tygard, Loring and Greer, after learning that even though they were not eligible for the September 11, 2007 “run-off” election, they were on the ballot and Plaintiff was excluded. Defendant Commission, through Mr. Barrett, refused to correct the ballot in light of the obvious mistake. 16. Thus, as a direct and proximate result of the failure of the Defendant Metro and the Defendant Election Commission, Plaintiff is being denied his right to be a candidate during the “run-off election for Council “at large” to be held on September 11, 2007. These Defendants are simply ignoring the plain language of Metropolitan Charter Section 1.07(A) as given the unequivocal interpretation of identical language by the Tennessee Supreme Court in Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007). WHEREFORE, PREMISES CONSIDERED, PLAINTIFF PRAYS: 1. That the Court accept this petition and that process issue and the Defendants be required to answer; 2. Pursuant to Tenn.R.Civ.P. 65.03, that a temporary restraining order be issued followed by a temporary injunction prohibiting the “run-off” election for Metropolitan Council “at large” positions currently set for September 11, 2007, or early voting beginning August 22, 2007, until a determination may be made as to whether the Defendants Tygard, Loring and Greer are eligible; 3. That upon a hearing of this cause, a declaratory judgment be entered against Defendants establishing that the interpretation of Metropolitan Charter Section 1.07(A) should follow the unequivocal interpretation of identical language by the Tennessee Supreme Court in Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007); 4. That upon a hearing of this cause, a declaratory judgment be entered against Defendants establishing that the Defendants Tygard, Loring and Greer are not eligible to placed

on the ballot for the “run-off” election for Metropolitan Council “at large” and that Plaintiff be placed on said ballot; 5. That Defendants be required to pay Plaintiff’s attorney fees and all costs associated with this action; 6. For all other relief to which Plaintiff may be entitled.

Respectfully submitted,

_______________________ Mark C. Scruggs, 10103 Attorney for Plaintiff 95 White Bridge Road Suite 508 Nashville, TN 37205 (615) 352-8326

OATH STATE OF TENNESSEE) COUNTY OF DAVIDSON) I, Philip Hostettler, after being duly sworn, state that I have read the allegations contained in the foregoing petition and that said allegations are true and correct to the best of my knowledge, information and belief. Executed this the ___ day of August, 2007. _____________________________ PHILIP HOSTETTLER Sworn to and subscribed to

before me this the _____ day of August, 2007. _____________________________ Notary Public My Commission Expires: ______________.