The attorney for Loudon County Commissioner Julia Hurley filed motions last month in her residency case that could have a big impact.
T. Scott Jones on April 20 filed to dismiss and to disqualify 9th Judicial District Attorney General Russell Johnson.
Johnson in March filed a petition against Hurley in an effort to end a months-long dispute questioning if Hurley permanently moved out of the second district and into the fifth district.
According to the motion to disqualify, Johnson is acting as more than a lawyer. Tennessee Rules of Professional Conduct notes a “lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.”
“If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may a be less effective witness,” the motion said. “Conversely the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case.”
An advocate who becomes a witness is “in the unseemly and ineffective position” arguing credibility.
“When you file a complaint as a party, you can’t be legal counsel,” Jones said. “Now, you can be a legal counsel for yourself, but then he’s subject to being examined, everything and that nature. So he is reporting to represent the interest of the county, if you will, or county commission and he just can’t legally do it. It’s a conundrum in the law is effectively what it is.
“... The way the complaint is different is such that it makes it abundantly clear that he’s not going to be able to serve as counsel,” he added. “I mean, you can’t be a witness and an attorney. You can have another attorney represent you and be a witness even though you have a law degree, but you understand if you’re a legal counselor then how can you have attorney-client privileged material when you’re subject to cross-examination?”
The complaint is “a political dispute” between Hurley, Johnson and County Commissioner Van Shaver, Jones said.
Shaver initially questioned Hurley’s residency in July after learning of her move through social media.
Jones has emphasized the move was temporary, that she would return in August and that she was “turning a piece of real estate.”
A copy of the lease provided Johnson in February showed a one-year agreement with a tenant for Hurley’s property on West 5th Avenue in Lenoir City, which is located in the second district, Jones said.
“To give but one example, in his complaint, Mr. Johnson alleges that Commissioner Hurley’s tenant stated that the lease was to include a purchase option for Mr. Hurley’s home and that this assertion was evinced by ‘emails and text messages between Hurley and Holmes’,” the motion said. “However, although Mr. Johnson attached various other documents to the complaint, including the lease, he did not attach any such emails or texts and the lease itself contains no such provision, although it was signed by the tenant.”
Johnson is a “necessary witness” because he has knowledge of the TBI investigation, has spoken with key witnesses and may have seen Hurley’s social media postings, Jones said.
“Beyond that, however, Commissioner Hurley will seek discovery from Mr. Johnson, not only regarding the TBI, conversations he has had with witnesses and his personal knowledge of the case, but also pertaining to Mr. Johnson’s bias and motivation, specifically his political motivations in trying to oust Commissioner Hurley from her elected office,” the motion said.
The motion to dismiss said the case was “brought on the relation of Henry Cullen,” who was required to “give security for costs of proceedings, to be approved by the clerk of the court in which the bill is filed.”
“Henry Cullen (county commission chairman) is a private citizen,” Jones said. “Henry Cullen cannot be the principal and surety. He can be a principal, but he can’t a surety. When they filed that lawsuit they did not pay a fee ... nor did they post bond, which means that it is a nullity at the beginning. ... A nullity effectively means that it’s void ab initio. It’s basically Latin that it’s void out of the gate because you can’t bring that cause of action without an appropriate cost bond. Those are parts of our rules of civil procedure.”
Security for costs is a prerequisite to be “validly” started, Jones said.
“In this case, however, there is no valid security for the costs and further no indication of the clerk’s approval,” the motion said. “The only security for costs appears to be the statement ... that Mr. Cullen will stand as surety for himself. Mr. Cullen is not a lawyer and in any event cannot stand as surety for himself, because a surety bond of necessity requires a third party.”
Jones believes because the case was “improperly filed” that there isn’t a case.
“Mr. Cullen cannot act as his own surety and in the absence of a cash bond, there is no security for the costs,” the motion said. “Because there is no cash bond, the suit was never validly commenced and must be dismissed.”
Jones on April 17 filed a request for answers to interrogatories and request for production of documents and request for admissions, which included Johnson detail his relationship with Shaver and Cullen, show the communication he has had with the two commissioners, explain why Johnson contacted Tennessee Bureau of Investigation and identify people who support Johnson’s “theory” on the case.
Johnson said both parties have agreed to “stay any discovery” until a motion date and scheduling order is received from chancery court.
“Chancery court is closed through the end of June to my understanding and may be closed further, per (county clerk and master) Lisa Niles,” Johnson said in an email correspondence. “Hurley’s lawyer has filed some motions. There is not anything that can proceed or hearing that can be held right now and for a while.”