Monday, January 30, 2012
City of Memphis, Caught Off Guard by Legislative Effort to Curtail Annexation Rights, Moves to Catch Up.
Committee will rush Gray’s Creek ordinance to counter new “Norris-Todd” bills aimed at breaking countywide compact on annexation zones.
Posted by Jackson Baker on Mon, Jan 30, 2012 at 9:24 PM
The action, in response to two new bills introduced by Republican legislators Mark Norris and Curry Todd curtailing Memphis’ powers of annexation, will begin with a meeting of the Council’s personnel, intergovernmental, and annexation committee at 4:30 p.m. Tuesday.
That committee will consider “an Ordinance to extend the boundaries of the City Limits of the City of Memphis by annexing the Gray’s Creek Annexation Area and assigning said area to a Council District.”
The proposed annexation of the Gray ‘s Creek area would never have come up in the absence of the state action, said Councilman Jim Strickland, who had been leery of any further immediate annexations by Memphis but sees the City now having little choice.
“I hope the people in the suburbs who think their interests are being served by the bills proposed up there realize that this annexation is being forced, not by Memphis, but by Nashville,” said Strickland, who said further he saw the battle over school merger to be the proximate cause of the new Norris-Todd bills — one of which would require a referendum of affected residents in a proposed annexation area and another which would specifically remove Gray’s Creek from Memphis’ assigned annexation areas.
“They don’t have enough students to pay for the school districts they‘re trying to set up, so they’re going to try to go out and annex some more students,” said Strickland, who says that the proposed legislation in Nashville will be found unconstitutional, even should it win a race with the Council and get the new Norris-Todd bills passed before the Council can act on annexation.
Memphis and the county’s suburban municipalities had reached formal agreement on their respective annexation areas in 1998 as a result of the then volatile dispute over “Toy Town legislation that, before being declared unconstitutional, would have hemmed Memphis in with a flood of newly incorporated “cities.”
Strickland said the new legislation would “interfere with a parties contract,” and it improperly would be attempting to apply a major change in the law to one county and one county only.
It was at this point last year that the original Norris-Todd bill was introduced by state Senator Norris and state Representative Todd, both of Collierville, and pushed through a compliant Republican-dominated Legislature on what amounted to a party —line vote. The bill in theory accepted the fait accompli of Memphis City School’s surrendered charter — a move that would force merger of MCS with Shelby County Schools, but it imposed a two-year delay on that merger and enabled the creation of new school districts within suburban Shelby County at the time, in August 2013, when the merger was scheduled to take place.
With modifications, the terms of Norris-Todd were approved by federal Judge Hardy Mays in adjudicating several overlapping litigations last summer. Mays still maintains effective jurisdiction over the terms of city-county school merger.
Councilman Shea Flinn, who learned of the proposed legislation upon arriving back in Memphis Monday after being out of town, noted, “This should put an end to all those protestations from Republicans that they believe in local government.” Flinn said last year’s legislative session and this one so far have made it obvious that the GOP-dominated state government will run roughshod over local interests whenever it chooses.
Council chairman Bill Morrison and Mayor A C Wharton issued a joint press release Monday that said in part:
“…These proposals, put forth without even a courtesy call to local government, single out the City of Memphis at a time when other municipalities have recently used the…1998 agreement — without argument or interference — to annex their reserve areas. It’s a move that smacks of racism, classism, and schoolyard bullying.
“Last year, we saw these same legislators try to leapfrog over the will of our citizens to surrender the charter of Memphis City Schools and to establish a unified Shelby County school system.
“This is a continued all-out assault on Memphis and its right to govern itself. We are calling upon all of our local leaders — whether they be leaders in politics, business, or the philanthropic arena — and the residents of Memphis to let their state representatives know that this will not stand.
If need be, we will meet this challenge in court.”
The resource to legal remedies is one believed in by Strickland and Flinn as well as by the Mayor and chair. “It’s really not all that important who wins a race to the finish line — us or the Legislature,” Strickland said. “We’ll win in the end.”
In the meantime, though, there are sure to be efforts to expedite the Gray’s Creek annexation ordinance. “I am confident it will be approved out of committee tomorrow [Tuesday] and on the Council agenda for next Tuesday," the Council chair said.
Morrison, who posited the goal of getting at new sales tax revenue as yet another reason for the proposed state legislation, said at first he thought it might be hypothetically possible to hold the required three readings of the city ordinance within a single week. Upon checking on procedure, he modified that estimate. “We can do it from beginning to end in 15 days, and that includes the required plans of service,” he said.
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Another foolish piece of special, unconstitutional legislation, directed at Memphis. It won't work.
Memphis is no longer a backwater town. It has plenty of brilliant lawyers, who will do whatever is necessary to allow the city to self govern within the boundaries of the state constitution.
Reserved annexation areas were formally agreed by all parties and signed. A retrospective law nullifying what has already been agreed upon goes against the state constitution. This is akin to the tiny towns law passed and ruled unconstitutional by the state courts.
And someone said that Mark Norris is a lawyer and he knows what he is doing. LOL
As I recall, many (mea culpa--et tu, OTP?) predicted that Judge Mays would invalidate the original Norris-Todd bill whose purpose was to throw a monkey wrench into the charter surrender/consolidation process. How wrong we were.
And there, as they say, is the rub. While Mays may yet invalidate the use of the Norris bill as the basis for the formation of separate school districts, something he reserved the right to do, but only when that issue becomes "ripe," which by no means presages what his ruling will be at that time, there is absolutely no assurance a judge---any judge---will invalidate this latest attempt to run Memphis' government from Nashville.
And yes, Norris knows EXACTLY what he's doing. He was right once (as opposed to the rest of us), which obviously emboldened him, and has given him every reason to believe he will be right once again. Also, please remember: one way or another, it will probably be one or more Republican judges who rule on this latest issue, and if you don't believe that will make a difference, I have one thing to say to you: Citizens' United.
If AC Wharton had only paid the 57 million dollar judgment to schools, we would not have to deal with these other problems from the Republicans in Nashville. But AC Wharton likes to pander to the Republicans in Nashville all the time.
Now his only solution to the problem is litigation. There will be more litigation and legal fees awarded to Wharton's lawyer friends.
Excessive litigation is Wharton's answer to every problem.
I too felt that Mays would rule the other way. Although I see Mays' ruling more in terms of a mediation. He gave a bit to each side, but also struck down a bit from each side as well. A very crafty, middle of the road ruling (IMHO). So, I am going to agree with you about the rest of what you said Marty, in the hope that I will be proven wrong.
Aren't there two bills in the hopper? The one most complained of here and another giving the folks about to be annexed the right to a separate vote on the annexation? If either one survives then Memphis will have great difficulty annexing ever again.
Assuming both bills fail, what is Memphis going to do when all of Shelby County is annexed? Sooner or later you folks in Memphis are going to bump up against the county line. Then what? If the only way you can grow your population is by annexation then maybe you have some underlying problems that aren't being addressed.
Now would be a good time for the City to enact serious development fees on future MLGW/City owned services in the reserve areas--make 'em pay through their noses to poo and/or water their lawn jockeys.
OTP: "This is akin to the tiny towns law passed and ruled unconstitutional by the state courts."
The tiny towns law was ruled unconstitutional on a technicality, in that the title did not adequately describe the contents of the bill. The bill was an attempt to protect Hickory Wythe from annexation by Oakland.
I can't find the actual wording of the Norris bill requiring a vote by those annexed, but it would be easy to amend the population limits in TCA 6-51-102 (a) (2) to include Shelby County. That would not be considered special legislation by the courts, or at least using population limits has been upheld numerous times in the past.
I could be wrong about this so please correct me, but from a cursory reading of annexation law it appears that a municipality can annex across county lines as long as the annexation doesn't span time zones.
You go, OTP! One day you will accomplish your dream of turning Memphis into a third-world ghetto. (You are pretty close to it now!)
Indeed flyhigh, all by himself, the great and powerful omnipotent OTP has singlehandedly turned Memphis from a paradise of uppoer middle class white people into a third world ghetto. Didn't have anything with white people not wanting to share political or economic power with black people and running away.
Awesomeberg, I understand what you are saying. I thought that Judge Mays would invalidate SB 25, but I was right on the central issue. That issue was, Pickler wanted to, in the least, be the controlling, through the old SCS Board, authority for the merger, making all of the decisions, etc. To me, that was the most imprtant part of the decision and not givi9ng the transition team plenary power.
As for the portion of SB 25 that lifts the ban on municipal school districts, I would hope that he takes the middle ground again. He doesn't have to rule on the constitutionality of the law, federal judges, without prior mandates from the supremes, are loathe to invalidate state laws. Judge Mays could just rule that the law was passed after MCS had surrendered the charter; the process, of course. Of course the legislature can again pass the law, but, it will be also open to litigation.
This is, maybe a stretch, however, the thing that could throw a monkey wrench into this whole process is, if President is Obama re-elected, is the denial of federal funding for Tennessee. This could be based on the fact, that the agreements made to the states stress diversity, and even allocates money to maintain it, meaning that if munis' are allowed separate school districts, it would dramatically reverse diversity, that money could be withheld. Would he do it? At this point in time, no; he has to worry about the election. After, should he be re-elected, a good chance, because, then, he is in his last term and has nothing to lose. Notice how he went after SC for their voting ID laws.. President Obama is not a timid man.
This would be the perfect carrot and stick move. This keeps it out of court and if, I believe, Tennessee is threatened with loss of a great percentage of education funding, from the feds, Tennessee will cave. What do you think?
That was me who said Mark Norris was a smart lawyer. You of all people should know it is true, or are you still embracing the ex post facto argument? Do you really think he didn't anticipate something like this from Memphis? I did, as soon as I read the article yesterday. I just didn't know which part of the county they would select for destruction. It looks to be right in the area that Norris/Todd planned to protect. So, we'll just have to wait and see what Norris/Todd do next.
My sympathies go out to those who live in the Gray's Creek area. That said, I'm glad it wasn't me.
Post 13 was directed towards OTP. My apologies for failing to include that in the post.
Uhoh, I didn't say that Mark Norris was not smart, I just said he is stretching the law, hoping that it sticks. He knows that contracts, agreements, can't be undone by a retrogressive law. He just hopes to get a republican judge to get a favorable ruling.
Within 14 more days the city of Memphis will annex that area and probably began annexing all of the areas in their reserves. That has already been agreed to, signed, sealed and delivered.
There are many tools in Memphis' toolbox to fight with. As I mentioned in my last post, the big stick is President Obama having the department of education deny federal education funding if the msd's are allowed to proceed. I think the conservatives have underestimated the strength of our president. He is well capable of making bold decisions, ie, the Osama Bin Laden raid, the recent rescue of the hostages in Somalia.
If he wins re-election, he would have nothing to lose. Also, Tennessee is not that important to the democrats, so there would be no fear of long term harm to the party.
There is always more than one way to skin a cat.
OTP, I'll be the first to acknowledge there are a lot of tools in Memphis government. During the battle over the schools I seriously thought AJ Wharton was dead until I saw him on a televised debate. Surprisingly, he didn't have much to say, other than the state could always exercise the nuclear option if it so desired.
I'm also wonder what happened to Tomeka Hart. Did that city employee/ex-con who stole the dog Kapone get her, too? Is she in someone's back yard in Mississippi?
If I were you, I wouldn't start counting that eleven million from Gray's Creek just yet. If Norris can get the legislation fast-tracked (if that is possible) that would allow them to vote, the answer will be a resounding "no". What do you think, 100% against unless someone forgets to bring his reading glasses? The day people actually get to vote whether or not they are annexed by Memphis is the day Memphis has its boundaries involuntarily frozen forever. I hope that day is soon.
Just out of curiosity, does anyone know if it is possible to change your username here? I want to do that, but I really don't want to open up multiple accounts to do so.
Uhoh,
Log on, go to your account/edit your account and change your screen name...I think.
GWCarver,
Did you realize that the Flyer changed your screen name retroactively/ex-post-facto? I think you should sue.
OTP you have a problem with your educational funding belief. TN is one of two TOP states for addressing NCLB in terms of data collection. The Nashville folks have been praised time and time again for their efforts to change things in TN. The last group to speak in Washington contained more reps from our state than any other. We aren't getting extra funding because of our lot ranking, but instead because of our efforts (not that I agree with thmem all).
And MCS has the worst diversity in the state. Population demogrphics for the city popultion are contrary to the populatioin demographics of the school system. AA for the city 66%. AA for the schools 83%. Not to mention you have some schools with NO diversity at all (Carver HS is one). MCS receives more federal funding than any other school system in the state. If this were really a problem, MCS would have never received funding in the first place or they would have been forced into rezoning similar to what Franklin COunty is attempting. I think that is going down in a wash of flames also.
And Obama can't direct DOE to cut off one state. The federal government, through the legislative process, provides assistance to the states and schools in an effort to supplement, not supplant, state support. 95% of federal fund are distributed either directly to local districts or to schools. Federal unding comes in the form of Title I, Reading First (k-3), Teacher Quality (TN needs more here), ESL, STEM, afterschool, charter, and many other smaller programs.
As far as legal action, in Bakke, The Supreme Court expressly held that assuring the enrollment of a specified percentage of students based on race “amount*s to racial balancing, which is patently unconstitutional." Race or ethnicity could only be considered as a “plus” in a particular applicant’s file. Thus, race may be used in an individualized, non-mechanical, and flexible way, which necessarily forbids the use of racial quotas or separate admissions tracks for minority applicants. In PICS the Supreme Court held unconstitutional race-conscious student assignment plans devised to alleviate de facto patterns of racial segregation and promote student diversity in three seperate states. Seattle had a system much like MCS optional program and they used race as the final factor in placing a student to MAINTAIN diveristy. In Louisville, there was a plan to allow students to move from zoning to achieve quota. In both districts, all students were classified on the basis of their race, and then accepted or denied into a particular school on the basis of that classification under certain circumstances. Parents of nonminority students, whose transfer or enrollment requests were denied under the assignment policies, filed suit. Wouldn't you just love to look at enrollment records for some of the optional schools after reading that! I think Franklin County is in for it. THere better be some poor white kids on the busses too.
There is a small movement that thinks that isolationism is a problem. But research has shown that when all black (or any ethnic group) kids are taught together with competent effective black teachers, they learn better than their counterparts sitting next to white kids. Try as I might to relate to the kids and make things relavent, I just don't have the experience or culture that they do. They would be much better served with a good teacher of their own race. Granted, I will be better, the longer time I spend with them, - because I AMKE the effort and I am better than the alternative of someone being "placed" their without the credentials i.e what came before me.
Homersimpson, you are mistaken. The supreme court also said that diversity can also be a compelling government interest and can be taken into consideration. If you carefully read the dicta of that decision, it tells you that. It is just that conservatives only show the parts that agree with them. Congress only allocates the funding, most of the rules and regulations are made by the agency. With any federal funding, there are certain compliance requirements. Some of the requirements are quite specific, but others are rather broad. The fact that the local lea, SCS recieved the federal money while operating a rather diverse student population and now wants to reverse that to over 90% white is reason to question the funding.
You are talking data, I am talking going from an almost 50/50 ratio diversity to almost a one race district. Yes theDOE is a cabinet agency, under the direction of the executive branch. It can deny funding, without any input from congress. Of course, the affected state, county, local government can file suit to get the funds back, however, that is costly and could take years to litigate.
It is the same as some of the suburban posters saying, the state of Tennessee can legislate and do as it pleases; well, the federal government can too.
You see, homersimpson, when any entity receives federal funding, they fall within the scope of all federal laws, tnot just the 14th amendment, but, also the civil rights act, the voting rights act, etc. I am sure that if you do your research, as I have done, you know that the DOE can, if it so chooses, deny funds to any entity that doesn't comply with the provisions of any of, the afore mentioned laws.
OTP please state the EXACT law that you believe will be violated by the MSDs.
Thank you Comanche Joe, it was indeed an agreement not a state law that was signed in 1998 when the state house was controlled by the Democrats. Even then, the City of Memphis violated constitutional rights of the people by not bringing this issue before the citizens for a vote. Heck the Democrats ran the scene with no regard to any correctness or lawfulness. No one cried foul then.
Truthis, things have changed. We now have leadership in Nashville who do actually care for the constituents opinion and the law of the land and, of course, Memphis leadership pulls the race card pouting cause they don't get their way. I have an idea: How about if they actually take their energy and racial hate and apply it to making good plans, being fiscally accountable, and having a blanced budget versus stuffing the money into their own pockets and letting their own constituency go to HE.. in a handbasket? WOW, now tha would change things. Think about it!
PRESS RELEASE
2/6/12 SUPER BOWL SUNDAY
The Cry of Moses to the Pharao of Egypt: LET MY PEOPLE GO!
So we have heard all the media spin on this issue, the basis of which remains the same: The American People have earned the right to request that their constitutional rights will be honored. therefore, we wish to cast our vote on the matter! We deserve to bring our wish to a vote. The 1998 agreement made in Shelby County deciding the future of the people in this county was unconstitutional at best because there was no vote brought before the people. The citizens of this county were not consulted at all, but a decision was made by certain leaders without seeking the people's voice or consent.
Furthermore, citizens in West Tennessee are not particularly happy when a Governor from East Tennessee tries to insert himself into a West Tennessee issue. It is not his land nor his family's future that is at stake here but that of our West Tennessean's future. We would kindly ask that the Governor take a step back on this issue unless his contribution record reveals that his biggest campaign contributors are land developers and real estate mogals. Then he is representing the other side of the equation, which again is not the people's side at all.
Again, this issue is all about 'off the people for the people'. Truthis, worst case scenario: Leadership of Memphis actually heeds the call and does actually step up for the people and turns things around, now not tomorrow or later because Memphis's children get slaughtered in the streets of Memphis daily, then the citizens of surrounding areas might want to join Memphis.
As it stands: Memphis leadership is still hiding behind racial rhetoric and racial hate to keep the devide alive that makes them rich but totally exploids its people. Let my People go!
John Bogan
President Fisherville Civic Club
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