Scheduled to lead off the hearing's second day on Friday morning was attorney Lawrence Giordano, a Chattanooga import who represents SCS and who came in for some rough treatment Thursday during questioning by Mays. The judge, who had spent five weeks trying to coax the various litigants into an agreement, mixed non-stop quips with penetrating, quasi-Socratic interrogatories of the lawyers in the case.
Giordano was asked repeatedly by Mays what his reading was of a 1961 private act cited by the Memphis City Schools board as justification for surrendering its charter and effecting de facto consolidation with SCS. Mays also sought Giordano’s interpretation of the Norris-Todd Act, a merger-transition plan passed earlier this year by the General Assembly.
In the face of apparent skepticism on Mays’ part, Giordano persisted in saying that the act, Chapter 375 of Private Acts of 1961, expressed at most an “intention” by the MCS Board to give up its charter, while preserving the active existence of the board pending final merger in August 2013 under terms prescribed by Norris-Todd. The latter, said Giordano, "supereceded" and "modified" Chapter 375.
Citing language in Chapter 375 which seemed to call for an immediate dissolution of the MCS board in the wake of the board’s vote to dissolve last December, Mays asked, “What does the plain language of that tell you?” After a long pause, Giordano answered cryptically, “It tells you precious else.”
On the key question of Provision 3 of Norris-Todd, which enables the creation of one or more special school districts within Shelby County after completion of SCS-MCS merger in August 2013, Giordano seemed to maintain that only the entire, newly merged city/county system could seek special school district status before acknowledging, under prodding by Mays, that suburban entities could combine to break off and form their own separate school district.
At several points the SCS attorney seemed to have difficulty formulating replies to Mays’ questions, which concerned several competing legal precedents and were based on the briefs and testimony of various principals in the case. At one point, Giordano attempted to resolve a seeming contradiction in his presentation this way: “If I said it, I don’t agree with myself, apparently.”
Giordano was not the only lawyer caught off guard. Each of the attorneys in turn — for such entities as the City of Memphis, the City Council, the stat Attorney General found themselves confused and sometimes speechless as Mays relentlessly probed for inconsistencies in their positions. Nor was Mays easy on himself. “I must have been wool-gathering,” he said once, confessing he had failed to grasp a lawyer’s statement.
The one lawyer who seemed most able to deal with Mays’ questioning on even terms was Leo Bearman, attorney for the Shelby County Commission. Bearman made an elaborate case in favor of the immediate dissolution of the MCS board under terms of the 1961 Act, which became effective, he said, upon a February 10th vote by the City Council which ratified the MCS board’s surrender of its charter.
Bearman argued further that a subsequent referendum by Memphis voters approving a transfer of the MCS charter to SCS was essentially symbolic and secondary to the Council action and, most intriguingly, that Norris-Todd was irrelevant to the process because its mechanics were based on the incorrect assumption that MCS was a true special school district rather than a municipal district without taxing authority.
Sooner or later, it will fall to Judge Mays to determine the pecking order of the various legal authorizations cited by the several disputants in the case, to resolve such matters as whether MCS still exists or is defunct, and to adjudge the relative merits of Chapter 375 and the Norris-Todd Act.
In the meantime, he will at some near point pronounce on the SCS request for an injunction against the county commission’s going ahead immediately to appoint a 25-member interim school board. The commission’s plans are based on the assumption that a successor organization to SCS, based on the one-man/one-vote precepts of Baker vs. Carr, must be created to administer the former MCS schools.
UPDATE: Germantown Board votes 4-0 to approve agreement.