Judge to rule on disqualified sheriff candidates’ appeal

Closing remarks from the judge hearing appeals from two disqualified Muscogee County sheriff’s candidates Tuesday indicated he was leaning toward siding with the local elections board.

The board on March 30 voted three to one to disqualify Democratic Party candidates Pam Brown and Robert Keith Smith because they failed to submit fingerprints for a criminal background check by a March 16 deadline.

Georgia law specifies those fingerprints must be submitted by the close of business three workdays after qualifying ends. Qualifying ended Friday, March 11, so the deadline was 5 p.m. Wednesday, March 16.

Brown and Smith said they tried to comply, but were unable to. Brown said no technician was available to take her fingerprints when she went to the police department about 4:45 p.m. March 16. Smith said he was misled by confusing and erroneous information given him by party leaders and public officials.

Still, neither complied with the letter of the law.

“The law is the law,” Judge J. Richard Porter III of Cairo said as Tuesday’s hearing ended, asking attorneys, “Is there any exception to the three-day rule? … The rule, it says ‘shall’ in three days.”

Porter declined to “stay” or delay the board’s decision after attorneys for the board said election workers already mailed ballots overseas with notices the sheriff’s candidates were disqualified but appealing. Were the judge to alter the candidates’ status, election workers would need specific instructions on whether voters were to be sent some additional notice and, if so, what it would say.

The judge said he expected to issue a ruling by Thursday, so a stay was unnecessary.

He asked attorneys on both sides to submit briefs and a proposed order for him to sign by 5 p.m. Wednesday. “I’m at the point I’m somewhat ready to go,” he said.

During the hearing, Brown’s attorney, J. Mark Shelnutt, recounted her running for sheriff in 2012, when she lost the Democratic Primary to incumbent John Darr by just 61 votes. She was fingerprinted for a background check that year, and duly qualified, he said.

Brown had a set of her fingerprints with her this year when she again qualified with the Democratic Party, Shelnutt said. But under the law, she had to be fingerprinted under the direction of the county probate judge.

About 4:25 p.m. March 16, Brown got an anonymous text saying she was about to miss the fingerprint deadline. That’s when she rushed to the police department and was told no one was there to get her prints and she would have to return the next day, and she did.

Shelnutt noted the sole Republican running, Mark LaJoye, told the board during its March 30 hearing that when he went to the probate court to meet the fingerprint deadline, clerks told him they didn’t know what he was talking about. LaJoye persisted until he met with Probate Judge Marc D’Antonio to resolve the confusion.

As the law says candidates must submit prints “on or before” the deadline, Brown complied by being fingerprinted in 2012, Shelnutt said: “The whole purpose is to determine whether someone’s got a record.”

Brown has no criminal record that would disqualify her, and should not be removed from the race on a technicality, the attorney said: “That’s just form over substance to the max.”

Smith’s attorney, Alfonza Whitaker, said his client similarly tried to do all that he was supposed to. When Smith qualified on March 10, he asked party officials, “Is there anything else I need to do to qualify?” No one then mentioned fingerprinting for a background check, Whitaker said.

Whitaker said the party should fully inform candidates of all that’s required, to avoid the “mass confusion” that ensued this time. He asked Porter to consider the “totality of the circumstances” that subjected Smith to “inaccurate, incomplete and erroneous information.”

Representing the elections board, Alex Shalishali of the law firm Page, Scrantom, Sprouse, Tucker & Ford told Porter the Supreme Court of Georgia in the 1980 case Grogan v. Paulding County Democratic Executive Committee interpreted the law literally, with no exceptions for missing the deadline.

The elections board is not responsible for what political parties tell candidates, and it did not act in “bad faith” to “trick” candidates into missing the fingerprint deadline, Shalishali said.

He noted the law sets six criteria for the judge to alter the board’s decision: He may reverse or modify it “if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions” violate the constitution or other laws, or they exceed the board’s authority, are based on unlawful procedures or other legal error, clearly erroneous in light of the evidence, or “arbitrary or capricious or characterized by an abuse of discretion.”

If Porter upholds the board’s decision, it eliminates a contested Democratic Primary for sheriff, leaving former sheriff’s Capt. Donna Tompkins as the sole candidate. Darr has said he will run as an independent. His only other challenger is LaJoye, so the race would be decided during the November general election.

This story was originally published April 19, 2016 at 12:06 PM with the headline "Judge to rule on disqualified sheriff candidates’ appeal."