Monday, July 30, 2012

Some Unofficial Thoughts On That Subpoena Request

Posted By on Mon, Jul 30, 2012 at 9:40 AM

Wilie E. Coyote in action
  • Wilie E. Coyote in action
The term “subpoena envy” is not new; it actually dates from some point in the late,unlamented period of McCarthyism in 1950’s America, when governmental agencies (notoriously, the House UnAmerican Activities Committee but many others beside) made it their business to investigate the opinions and beliefs of private individuals and the effect of those opinions and beliefs on public policy.

The reaction of many to these intrusions was to wear their target status as a badge of honor. “Subpoena envy” is an obvious play on words. It was applied to (and by) those mavericks and heretics who were irked at not being considered worthy of investigation.

Well, it remains to be seen whether the term is germane to those of us in the media world who, unlike The Commercial Appeal, had not (as of Sunday, anyhow) been served with a subpoena seeking the identities of the online commenters on our websites. It also remains to be seen whether those who sought such information — attorneys for the Shelby County Commission — are to be viewed as latter-day McCarthyites or as honest seekers after truth.

The jury of public opinion may be out for a while, regardless of what happens in the courts per se. The Commercial Appeal has meanwhile indicated it will resist the subpoena.

While maintaining that he had no advance knowledge of the subpoena effort (apparently no member of the Shelby County Commission did), Commissioner Steve Mulroy, a Democrat and a member of the Commission majority which has striven to retard the creation of municipal school districts, has offered a public rationale for the subpoena request.

In essence, it is that the subpoena — which, if successfully executed, would not result in the publication of the information gained about commenters’ identities — might establish a context in which a John Doe, or series of John Does, could be demonstrated to have stated racist rationales for resisting city/county school consolidation and favoring municipal schools, while simultaneously being involved in some advice or influence capacity with the framers of relevant legislation.

And any such connection, if demonstrated, would be germane to that portion of the ongoing County Commission suit that alleges re-segregation to be a motive of the legislation enabling municipal school referenda in Shelby County’s suburbs.

It is this aspect of the subpoena request that Commercial Appeal executives have called a “fishing expedition.” And the following explanation of motive, from a member of the legal team itself to each individual commissioner, elaborates on the premise:

It appears that some of you have questions about the recent subpoena we served on the Commercial Appeal. Rest assured we did not serve the subpoena to seek the identity of those who disagree with our legal position or those that are critical of you. Instead, we have a very specific legal need for information related to some of the posted comments. We are not trying to embarrass ordinary citizens, nor do we need to make public the information we learn. Instead, it is very likely that we could receive the information we seek on a confidential basis so that we would not need to publicly disclose poster’s names or comments. We would have been glad to negotiate with the Commercial Appeal’s attorneys to protect this confidentiality if they had called us rather than just commenting on a news story.

Please realize that we are in the middle of discovery in this case and we are requesting all kinds of information that we will need to prove our case. The information we have subpoenaed is information we need, and the Commercial Appeal’s website appears to warn those that choose to post comments that it cannot guarantee the confidentiality of their personally identifiable information. Even so, we will do whatever the Court requires to protect confidential or personally identifiable information of posters.

Never mind that somewhat hedged pledge that the recipients of this hitherto confidential information “would not need to publicly dispose poster’s names or comments.” As in any game of gossip, the idea that “you can tell me, I won’t tell anybody else” is arguably always suspect, no matter the good motives of the pledger.

The real problem with the subpoena request, aside from questions of whether it invades privacy or nibbles away at the First Amendment, would seem to be that it imagines political mechanisms that don’t exist. We can take it as a given that racism still exists in the minds of legislators, as in those of citizens at large, most of whom would not acknowledge it, even to themselves.

But to go on from there to assume that influential legislators in Nashville — specifically, the oh-so-fastidious and careful state Senator Mark Norris, principal author of the legislation in question — would be provably and primarily moved by advice from anybody who would author racist rants in a public newspaper, even anonymously, would seem to be a leap of faith akin to the ones serially and catastrophically taken by Wilie E. Coyote off the edges of cliffs in the Roadrunner cartoons.

And the cast of mind which imagines such a premise is, arguably, an unusual bias in itself — ignoring the social and economic and purely political contexts in which suburbanites and their representatives in legislative bodies might desire what they think of as autonomy, even as others might legitimately question it as discriminatory.

Just sayin’.

Saturday, July 28, 2012

Jeanne Richardson Soldiers On in a New District

Dispossessed of her District 89 by reapportionment, legislature's "most liberal" member takes on John DeBerry in District 90.

Posted By on Sat, Jul 28, 2012 at 10:30 AM

State Representative Jeanne Richardson (above, in video) was in her element on Friday at the intersection of Cooper and Young, conducting a press conference in tandem with City Councilwoman Janis Fullilove and Arkansas state representative Kathy Webb, the first openly gay woman to be elected to an official position in that state.

You have to give Jeanne Richardson points for coping. Imagine, first of all, having your birth name mispronounced so universally that you end up accepting the mispronunciation as the name itself.

“Jeanne” is meant to be pronounced like “Gene.” But the double ‘n’ led so many people, from her early teachers on, to sounding her name in two syllables, like “Jean-ie,” that that’s who she finally became.

Then, having been elected to the state House of Representatives from relatively liberal Midtown District 89, she became, arguably, the most liberal member of the legislature, on both social and economic issues. One of her daughters, noting that her 2010 opponent used just that phrase about her as a pejorative, expressed concern about the attack line, whereby Richardson told her, quite proudly, “Honey, I am the most liberal member of the legislature!”

But when Tennessee Republicans, as the state’s new majority party, laid their redistricting plans late last year, they in effect abolished Richardson’s constituency, shifting District 89 to Middle Tennessee and leaving her to find a (relatively) comfortable district to run in against another Democrat.

That turned out to be District 90, the majority-black bailiwick of John DeBerry, an African-American minister and businessman whose votes on social issues are as conservative as any Republican’s. The District also encapsulates numerous progressives and a significant gay population, though, and Richardson’s candidacy was as much a draft by this constituency as a willed action on her part.

With Elvis and granddaughter Frances at a recent fundraiser
  • JB
  • With "Elvis" and granddaughter Frances at a recent fundraiser
Campaigning hard with limited resources, Richardson saw DeBerry receive a Commercial Appeal endorsement she had hoped to get, and 9th District congressman Steve Cohen, who has epitomized pragmatic liberalism in these parts for decades, chose not to endorse in the District 90 primary, claiming friendships for Richardson, DeBerry, and a third candidate, Ian Randolph.

But she has numerous endoresements from prominent Democrats and active independents, both black and white, as well as from such staple organizarions as the Sierra Club, The Tennessee Education Association, and the Firefighters Association. And the Tennessee Equality Project is resolutely in her corner.

At one of her recent fundraisers, Richardson became philosophical about her efforts on behalf of gay rights. Not only were these rights worth defending in themselves, she said. So long as they were kept alive, artificially, as issues, they would be used as screens to obstruct citizens’’ views of economic inequalities. It was an almost Marcusian view of political realities.

Richardson soldiers on, against what she knows are long odds, and, though she is not loath to cite what she regards as wrong-headed DeBerry votes (against gay adoption rights, for example), she made a point on Friday of commending him for supporting the efforts of blogger/County Commission candidate Steve Ross, who dates her daughter Ellyn, in exposing the Election Commission’s widespread early-voting glitches.

See also this weeks' Election Preview.)

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Thursday, July 26, 2012

The Early-Voting Error Total is Now Well Past 2,000

Posted By on Thu, Jul 26, 2012 at 11:44 PM

Dr. Joe Weinberg
  • Dr. Joe Weinberg
Here’s an update by Joe Weinberg, the Germantown pediatrician who, simultaneously with blogger/A..V. specialist/District 1 County Commission candidate Steve Ross, has been keeping running totals on the number of wrong ballots issued countywide so far during early voting for the August 2 election.

Weinberg’s figures are calculated only for the state and federal portion of the election ballot. They do not measure possible erroneous ballots for countywide races or School Board races.

Through Wednesday, July 25, the cumulative total of erroneous state and federal ballots was 2,306. That broke down into 1,893 ballots containing the wrong state House race, 133 with the wrong state Senate race, and 280 with the wrong congressional districts. The cumulative error percentage rate was 5.6 percent, about what it has been since the second day of early voting on Tuesday, July 17.

(The first day’s early voting on Monday, July 16, had an error rate of a flat 10 percent!)

However, Weinberg notes that the error percentage rate for Wednesday’s voting all by itself was only 4.4 percent. “Hopefully, this is the start of a trend,” Weinberg said.

Ross, after looking at Weinberg’s figures, certified them as consistent with his own findings.

It was Ross whose researches first revealed the scope of erroneous ballots. It was Weinberg who was consulted by state Election Coordinator Mark Goins of Nashville, who would certify the accuracy of Weinberg’s figures and the consistency of an error rate in the 5 percent range.

Robert Meyers, the chairman of the Shelby County Election Commission, has acknowledged the accuracy of figures produced by Ross and Weinberg and has publicly thanked the former for bringing the situation to light. The chairman has said the Election Commission technical staff is working “day and night” to correct the ballots, conceding that there is no way to amend those wrong vote already cast.

It is generally acknowledged that a major contributing factor to the high error rate is the fact that the Commission waited until mid-June, when Chancellor Arnold Goldin imposed a redistricting plan on the fractionated Shelby County Commission, to begin matching precincts with redistricting maps provided by the state. Simultaneously the Election Commission was reducing and consolidating the number of countywide precincts.

Ross and other critics of the delay have pointed out that, since no elections will be held based new County Commission lines until 2014, the Commission could have begun preparing ballots as early as February when all electoral bodies required to redistrict for 2012 elections had accomplished t heir reapportionment.

What is the GOP Trying to Tell Us? That Chumney vs. Weirich is a Race?

Posted By on Thu, Jul 26, 2012 at 10:14 PM

Chumney (left) and Weirich: A Republican broadside opens up doubt where there was certitude.
  • Chumney (left) and Weirich: A Republican broadside opens up doubt where there was certitude.

As August 2nd gets nearer, expect to see and hear some surprising things on the campaign trial. One of them surfaced this week in an email sent out from Shelby County Republican headquarters.

The slug line itself was intriguing: A campaign record that Prince Mongo would be proud of.

The surprise, though, would come from the email itself. Two surprises, really. One was the choice of subject: Carol Chumney, Democratic nominee for District Attorney General. The other —and chief — surprise was that the Republican Party found itself tempted (Or obliged. Or whatever) to go after Chumney , whose chances of beating widely admired Republican Amy Weirich, the incumbent D.A. , had almost universally been written off, even among Chumney’s relative handful of never-say-die supporters.

The text wastes no time, beginning with a direct slap: “There are a few things you can bet on when it comes to summertime in Shelby County: Heat. Humidity. And Democrat Carol Chumney running for yet another political office!”

It goes on to recount the fact that Chumney lost three mayoral races in the last decade — one for county mayor and two for mayor of Memphis — and squares the verbal circle with the statement “It’s a record Prince Mongo would be proud of.”

Next, after endeavoring to establish that Chumney is unqualified to be D.A. and is “all-too-desperate for a government job,” the text enumerates a series of Weirich accomplishments and endorsements that are indeed impressive.

Fair enough — even to noting that fact that Weirich has some prominent Democratic support (City Council members Jim Strickland and Shea Flinn, for starters, though no names are actually mentioned) and that the “area’s top two Democrats,” who are identified as 9th District Congressman Steve Cohen and Mayor A C Wharton, have declined to endorse Chumney.

All de rigueur. (As they say.) So why are we reading this email? “This race is too important to leave to chance.” That seems a little breathy. After stressing the importance to public safety of electing Weirich, the next paragraph goes on to say, “But it won’t happen by accident.”

Chance? Accident? Puzzling terms, especially given the facts of Weirich’s advantages (not excluding something like a 10-to-one fundraising advantage) and the certitude of there being a flood of suburban (read: Republican) votes on August 2nd in favor of municipal school districts.

What does the Shelby County GOP know that the rest of the sapient world doesn’t about circumstances of chance or accident that could potentially upset the odds board and give Carol Chumney a victory over Amy Weirich? Why does the Grand Old Party sound so worried?

Chumney should be grateful for this Republican email. It introduces the idea of doubt into what had been widely regarded as a done deal.

In fact, Chumney began circulating the letter herself —attaching it to an email in which, inter alia, she pointed out:

I came within 7 points of becoming the Mayor of Memphis in 2007 against a 16 year incumbent.

I ran for public office because of my passion for public service. My win record is 16 to 3, having won 7 primaries for state house; seven general elections for state house; the top vote getter for the city council election and then winning the run-off against an opponent who put thousands of his own money in the race (George Flinn). My only losses have been to well-funded incumbent mayors.

This, too, is fair enough. And Chumney, too, has some things in her resume to boast of, including, as she noted in a followup email, her service as a special judge in civil and criminal courts.

Is there a race here? It still looks awfully much like a probable runaway for Weirich. But maybe indeed the Republicans know something troubling about the vagaries of fate. That email sure makes it look that way.

Tuesday, July 24, 2012

State Election Coordinator Confirms: Shelby Error Rate in Early Voting is 5 Percent

Posted By on Tue, Jul 24, 2012 at 4:46 PM

State Election Coordinator Mark Goins
  • State Election Coordinator Mark Goins
Mark Goins, the state Election Coordinator, confirms that allegations made by two local investigators concerning a 5 percent error rate in the assigning of early-voting ballots in Shelby County are accurate.

Blake Fontenay, spokesperson for Goins,further acknowledged to the Flyer Friday that 1300, the number of erroneous ballots pinpointed as of Monday by Dr Joe Weinberg, “sounds about right.”

Weinberg and blogger/candidate Steve Ross, both Democrats, have been independently checking into cases of erroneous ballot assignment. Ross had earlier attested to some 1,019 such errors, both in a conversation with the Flyer, and later in a Monday press conference, Weinberg’s higher totals were arrived at also on Monday.

Both Weinberg and Ross have been comparing state voter records with participating voter lists released locally by the Shelby County Election Commission.

Weinberg told the Flyer on Tuesday that Goins had called him from Nashville and expressed interest in his findings, wanting to confirm them for himself on the basis of state data. He did so, said Weinberg, and Fontenay acknowledged to the Flyer that Weinberg’s reckonings were accurate.

Weinberg said he had primarily been looking at discrepancies in state House of Representratives races but had uncovered cases of wrong ballots for other August 2 races as well.

“Another thing I’ve noticed that bothers me is the fact that people are having their districts corrected in daily updatings of the participating voter list, but their votes are still recorded in the wrong districts,” said Weinberg, who expressed concern that identifying future discrepancies would be made more difficult by such a process.

He added that at the rate ballot errors were being discovered, the total number of them, if updated, might be higher by some 300. "I haven't had a chance to check yesterday's figures yet," he said.

Possible glitches in the early-voting process first came light with disclosures that hundreds of households in Collierville had been unaccounted for in balloting for that city's referendum on municipal school districts.

In short order came reports of isolated cases, in Bartlett and Memphis, of voters being given ballots for the wrong state House races. Then came the separate systematic reorts from Ross and Weinberg.

Asked to respod to the news from Goins' office, Shelby County Election administrator Rich Holden deferred to SCEC chairman Robert Meyers, who, when reached late Friday, acknowledged that Ross' and Weinberg's findings were "at least 90 to 95 percent accurae."

Meyers said, "We're working around the clock to fix things." He acknowledged that participating voters' list updates were being amended to include the correct distict assignments. "We're not trying to hide anyting by doing that, just trying to make corrections. Maybe the neighbors of those voters who haven't voted yet will notice the change and find it helpful."

Meyers said he thought it was "too easy" to attribute the voting problems to the Commission's late start in making precinct lists -- a decision that Holden and thers have said was based the Shelby County Commission's unusual tardiness in arriving at a redistrciting consensus. (Actually, the Commission never did formally agree new lines; in mid-June, Chancellor Arnold Goldin was forced to rule on a single-member district plan.

"We think the issues are more complicated than that. We're working around the clock to contain the damage now and will have to assess the extent of it after August 2," said Meyers, who said he thought most problems were being encountered in state House and Senate races, whose primaries are the province of party primary boards.

"I'm sure we'll be getting with the boards of both parties as soon as possible to see what can be done."

Monday, July 23, 2012

Candidate Ross Says 1,019 Wrong Ballots Given Out So Far

Veteran activist and District 1 Commission hopeful says study shows local Participating Voter List doesn't sync with state redistricting maps.

Posted By on Mon, Jul 23, 2012 at 12:01 AM

voter_line.jpg
The much-beleaguered Shelby County Election Commission is about to get another big shock, which will also further shake the already weakened confidence of Shelby County voters in the accuracy of the August 2 election process.

If the calculations of Steve Ross are correct, no fewer than 1,019 Shelby County voters have been presented with erroneous ballots so far in the early-voting process.

Ross, the Democratic nominee for a District 1 County Commission seat, has been a determined all-purpose political activist for years (somewhere between a gadfly and an ombudsman), and being a candidate for office hasn’t halted his efforts. If anything it’s whetted them.

Along with fellow Democratic activist Steve Steffens, Ross began bird-dogging the early-voting process even before it started, in effect prophesying adverse results from the Election Commission’s late start in assigning post-census precincts for this year’s election dates — a process that was complicated further by the Commission’s decision to consolidate the number of precincts, eliminating 17 of them.

After the first day of early voting, it was discovered that some 568 households in a newly annexed portion of Collierville had not been included in making out the ballot for what , in each of Shelby County’s six incorporated suburbs this year, is inarguably the most compelling issue — a referendum on whether to create a municipal school system.

In addition, several residents of Bartlett were apparently given the wrong ballot, and such confusion occurred even in Memphis, as was demonstrated in the case of David Holt, a resident of House District 93who was given a District 98 ballot. Holt finally got the right ballot, but only after making a serious fuss and over the initial reluctance of poll workers to review his case.

Using the software package of the Voter Activation Network (VAN), which, says Ross, continually updates voter data for each of the 50 states, Ross was able to access the master voter file from the Tennessee Secretary of State’s office, match it up with the official state redistricting maps, and with the Shelby County Election Commission’s Participating Voter List.

He found the SCEC list to be out of sync — with the result that 857 Shelby Countians have already voted in the wrong House race alone, and with wrong ballots being assigned in congressional races, state Senate races, and on the muinicipal-school referendum.

Ross said he had used only those cases in which voters had not changed their address since the census and redistricting in order to make comparisons. He said he and others would be scheduling a press conference on Monday to publicize the results of his survey.

Sunday, July 22, 2012

Roland a candidate for Commission Chairman?

So he says, and Millington’s “Mr. Congeniality” seems to be serious.

Posted By on Sun, Jul 22, 2012 at 9:52 PM

Terry Roland
  • JB
  • Terry Roland
As indicated both online and in the Flyer's "Politics" column last week, the Shelby County Commission is now riven by factionalism to the degree that agreement on significant issues is difficult.

One case in point is the interminable squabble over redistricting, which continues despite what had seemed a definitive ruling in favor of a single-member-district plan by Chancellor Arnold Goldin.

It is still likely to be a done deal, if Goldin disposes quickly of a fresh Commission motion that he reconsider his judgment, which was based on what he saw as the primacy of state law over the requirements of the county charter.(The difference is that state law requires a simple majority on third and final reading of a reapportionment resolution, the charter a two-thirds majority.)

Another issue on which disagreement is rife is that of who is to chair this contentious bunch during the next year? Four names were put into the hat during a lengthy meeting last Monday, and none came out with the seven votes needed.

The decision was put off for two weeks, with the known candidates being current chairman Sidney Chism and Henri Brooks, both Democrats; and Wyatt Bunker and Mike Ritz, both Republicans.

Well, guess what? Millington Republican Terry Roland, a.k.a. “Mr. Congeniality,” has decided to throw his hat into the ring.

“People were wondering why I didn’t want to vote the other day for Wyatt Bunker,” Roland says. (Actually, people weren’t wondering; the two suburban Republicans have had profound disagreements, one of which —over redistricting— almost got physical and prompted Bunker to call the cops on Roland.)

“Well,” Roland continues, “I’ll give ‘em something else to wonder about. I am now a candidate for chairman.”

Though several of his colleagues are likely to be surprised (or even concerned), the idea of a candidacy by the colorful and controversial Roland is not as far-fetched as it seems at first blush. Roland has, after all, been shrewd enough to form situational alliances on specific issues with Democrats, and, on most hard-core GOP issues, he makes common cause with his fellow Republicans.

As far as his short fuse is concerned, Roland has threatened at least one Democratic colleague, too (maybe playfully), making him something of an equal-opportunity bully boy.

And the fact is, Roland came as close as anybody else, this side of Judge Goldin, to brokering an agreement on redistricting.

At the very least, his candidacy may lend the next meeting of the Commission an entertainment quotient to make more tolerable what is likely to be a(nother) lengthy affair.

Thursday, July 12, 2012

Maybe It Ain’t Over, But..

The prospect of preventing municipal school districts seemed remote after a surprisingly strong rejection by Judge Hardy Mays of an injunction request.

Posted By on Thu, Jul 12, 2012 at 9:55 PM

County Commissioner Sidney Chism tries to exude optimism about Commission petition rejected Thursday by Judge Hardy Mays.
  • JB
  • County Commissioner Sidney Chism tries to exude optimism about Commission petition rejected Thursday by Judge Hardy Mays.

“Not to enjoin the election but to second-guess it!” That was one way that U.S. District Judge Hardy Mays described his answer to a request from the Shelby County Commission to halt forthcoming referenda in six Shelby County suburbs on whether to create independent municipal school districts.

But Mays’ next guess is likely to be no more comforting to opponents of such school-system fragmentation than Thursday’s all-day hearing was. He seemed obviously dubious about the prospect of invalidating the sub urban process after reviewing briefs from various attorneys, hearing their testimony, seeing video excerpts of the legislative action that enabled the suburban referenda, and grilling the lawyers — especially Leo Bearman, attorney for the County Commission.

Mays narrowed the issues of the injunction request down to two: (1) Were there reasonable grounds for success for the plaintiffs’ charges that two enabling bills lifting a ban on new municipal districts were unconstitutionally limited to Shelby County; and (2) Would going ahead with the August 2 referenda cause “irreparable harm” to the plaintiffs or to Shelby County generally.

And his answers were clear: On the basis of what was presented to him in the attorneys’ briefs and in testimony Thursday, Mays did not foresee reasonable grounds for success. And, while the plaintiffs had “remaining remedies” for halting the municipal school process at some later point, the suburban citizens involved already in an election process that had technically started would suffer “substantial harm” from having that process interrupted.

In short, Mays was seeing things in an almost opposite way from the way the plaintiffs were presenting them. At the Monday status conference at which he had granted today’s hearing on the Commission complaint, “No judge in his right mind wants to enjoin an election,” Mays had said, but, on the other hand,” to let it proceed with a void statute “would be a mockery.”

By Thursday afternoon, however, the balance of those two premises had seemed to shift on Judge Mays' scale. His concern over the effects of interrupting an election process still loomed large, if not larger, but the specter of letting a potential “mockery” go on unimpeded had correspondingly diminished.

In vain did Bearman plead that a failure to enjoin the referenda would undermine efforts to establish the Unified School District now in the process of creation, that the referenda would have “financial ramifications,” as well as “psychological and emotional” ones for Shelby County at large.

In vain did Commission attorney Lori Patterson present excerpts of legislative debate from this past spring in which sponsors of the two bills being charged with unconstitutionality acknowledged that the measures’ sanctioning of referenda for municipal school districts was carefully and consciously restricted to Shelby County, putting them in jeopardy of violating constitutional mandates for general legislation. “Self-authenticating,” she called them.

Both Tom Cates, attorney for the six suburbs, and Kevin Steiling, deputy state Attorney General, objected to the presentation of the video excerpts, which were shown (or "greatest hits" that were “played,” in the media-conscious terms first employed by Judge Mays and then by several of the attorneys) on a Jumbo screen along one side wall of the courtroom. They were, said the objectors, out of context — the context being the 14 hours or so of debate in which they had occurred. By and large, Judge Mays agreed, but he consented to have them seen, as a help in making up his mind, though not as admissible evidence.

As my colleague John Branston has noted in a companion piece, much of the courtroom dialogue, particularly that part of it from a visibly care-worn Judge Mays, was muffled and/or muttered, and, perhaps appropriately, so was the sound of the video excerpts , which went in and out and was oft unintelligible.

But state Rep. Bill Dunn of Knoxville was clear enough in saying he couldn’t vote for one of the bills so long as it applied statewide, and state Rep. Gerald McCormick of Chattanooga, the House majority leader and bill co-sponsor, was equally clear. The bill had been altered to designate “only Shelby County.”

As was noted in court on Thursday, one qualifier restricted the bill to those counties in which there had been created a “transition planning committee.” Only Shelby County fit the bill. Another criterion stipulated how many students a qualifying county had to have —a number large enough for only Shelby County and Davidson County (which, of course, has no “transition planning committee.”. Ultimately, only Shelby County would be affected by the bill, the nervous Bill Dunns of the General Assembly were assured.

It did not seem especially contestable as to the intent of the bills’ framers — to pass a bill affecting only Shelby County. And Leo Bearman put it bluntly: “Everybody in this courtroom knows it, and everybody in the legislature knew it.”

What seemed to be an inordinate amount of time (but may have been necessary for legal purposes down the line) was devoted to the contention of the bills’ defenders that counties like Carroll and Gibson County could be affected by the legislation if future events should cause their populations to multiply (by a factor of four, as Bearman noted wryly).

Spectator Charles Perkins, the well-seasoned former Shelby County Commission stalwart who now lawyers for Arlington, one of the referendum towns, argued semi-seriously during a lunch break that “World War Four” could cause a huge defense industry to spring up in Milan. And then — who knows?

Judge Mays’ wont is to carry on Socratic-style dialogues with lawyers in his courtroom, thereby extracting the strong and weak points of their arguments. On Thursday he was more effective than either Cates or Steiling in casting doubt on the plaintiffs’ position. In an interrogation just before lunch break, he went at Bearman relentlessly on the issue of what “irreparable harm” might affect the plaintiffs if the suburban referenda went forward.

As in all such one-on-one dialogues between judge and attorney, especially if the judge is Mays and even if the attorney is the redoubtable Bearman, differences of opinion are resolved in favor of the jurist, and this encounter was no exception. And it was in this exchange that Mays signaled strongly that he was not inclined to enjoin the election.

Nothing much changed after lunch— though Bearman recovered from the one-sided back-and-forth and had some of his usual eloquent moments, but Judge Mays, whether through indecision, an excess of caution, genuine skepticism as to the plaintiffs’ proofs, or a belief, as Mays himself put it, in judicial “restraint,” was clearly having none of it.

Everybody had seemed to settle on a vintage legal precedent, Farris vs. Blanton, in which it was stated that the applicability of a law to a given jurisdiction had to be exactly put forth and could not be “theoretical, illusory, or merely possible.” But Mays, who had himself invoked the precedent, would say in his summing-up that to discount Carroll and Gibson Counties, unnamed in the legislation, as “theoretically impossible” was not enough to invalidate them as possible beneficiaries of it.

So the referenda will go on, and Judge Mays also declined to interfere with the counting and certification of the election results. But he scheduled yet another status conference for Friday morning to consider a schedule for possible trial (at which the issue of potential re-segregation, not dealt with at Thursday’s hearing, might be dealt with in detail, along with reconsiderations of the issues discussed Thursday).

The prospect of invalidating the referendum results, whether theoretical, illusory, or merely possible, was still alive, technically. But as someone — actually, several someones — pointed out, the longer the toothpaste is allowed to ooze out of the tube, the harder it is to stuff it back in.

And, by the way, the courtroom Thursday was packed with school, government, and media types associated with ther school-merger issue. There were two conspicuous absentees -- State Senator Mark Norris, author of the suburbs' enabling legislation, and Bartlett Mayor Keith McDonald, who has been spearheading the suburban school movement.

They were both out of town Thursday, but it was not hard to visualize them smiling.

Monday, July 9, 2012

Mays Sets Thursday for Hearing on Commissioners’ Complaint

Posted By on Mon, Jul 9, 2012 at 11:37 PM

Reluctantly, but out of a sense of urgency, U.S. District Judge Hardy Mays set Wednesday afternoon as a quick deadline for attorneys’ filings and Thursday morning for a hearing on a Shelby County Commission suit to halt the suburban referenda on municipal school districts now set for August 2.

Mays announced the schedule Monday afternoon at a status conference with attorneys representing the relevant parties in this latest turn of legal events regarding the forthcoming city/county school merger.

“If we don’t get something done this week, my inclination is not to do anything,” Mays said, noting that absentee voting (but not vote-counting) seems to have already begun, with early voting set to commence next week and the election itself less than a month away.

Mays discounted the idea of a temporary restraining order, saying his decision would be on whether or not to enjoin the referenda altogether.

“No judge in his right mind wants to enjoin an election, but, on the other hand, to let it go forward [without statutory authority] would be a mockery,” said Mays, but he carefully limited the substance of this week’s hearing to issues of the standing of the parties and whether 2012 legislation enabling next month’s referenda improperly singled out Shelby County.

The first of those matters has to do with an allegation by Tom Cates, lawyer for the suburban municipalities, that the seven members of the County Commission who brought the suit did so without proper notice, in violation of the state Sunshine Law, and without taking a vote of the full Commission. The second has to do with the plaintiffs’ contention that two bills passed by state Senator Mark Norris fail to apply statewide and are thus unconstitutional.

Mays made it clear that a second allegation by the plaintiffs, that the referenda would tend to cause school resegregation, could not be argued in less than two months’ time. “There’s no way that a court…can decide on discriminatory effects without hearing proof,” the judge said, and Leo Bearman, attorney for the Commission plaintiffs, would respond that “if we don’t persuade Your Honor” on the grounds to be dealt with this week, he would attempt to offer persuasion on the matter of resegregation later on.

Attorneys for the state of Tennessee, the City of Memphis, the Memphis City Council, and the Memphis Education Association were among those present and taking part in the status conference, but the main arguments were borne by Bearman and Cates.

At a “town meeting” on the schools matter held later at the Bartlett Municipal Center, Bartlett Mayor Keith McDonald addressed the issue of whether this year’s Norris legislation, which set population limits under which only Shelby County could qualify at the moment, might come to apply to other Tennessee counties later on.

Here Is the kernel of McDonald’s argument, one which led him to be optimistic about Mays’ forthcoming ruling:

And here is County Commissioner Terry Roland of Millington at the same meeting, making the argument that the 3rd Party Complaint was filed in violation of Commission rules:

Saturday, July 7, 2012

Suburbs Take Steps to Join School-Merger Suit

Posted By on Sat, Jul 7, 2012 at 6:07 PM

It remains to be seen how U.S. District Judge Hardy Mays intends to proceed with the latest developments regarding city/county merger litigation.

He has scheduled a status conference on Monday regarding the third-party complaint filed by eight members of the Shelby County Commission on behalf of the Commission. On Thursday Mays ruled “proper” and “timely” that filing, which seeks to block the suburban referenda on municipal school districts scheduled for August 2.

But now Mays will also be called upon to rule on efforts by the six affected municipalities to become parties to the ongoing and overlapping litigation, which began in early 2011.

Beginning with a Friday afternoon meeting of the Collierville mayor and aldermen, the suburban city government one by one acted to associate themselves with the merger cases .

Here is now it went down in Germantown later Friday. In a public meeting held in the City Hall meeting chamber following an executive session,, Mayor Sharon Goldsworthy and her Board of Aldermen formally voted to become litigating parties.

The ball, as they say, is now in Judge Mays’ court.


Thursday, July 5, 2012

Judge Mays: Commissioners’ Petition Against Suburban Referenda “Proper” and “Timely”

Posted By on Thu, Jul 5, 2012 at 11:19 PM

U.S. District Judge Hardy Mays
  • U.S. District Judge Hardy Mays
U.S. District Judge Hardy Mays has bestowed his judicial sanction on the legitimacy of an effort by Shelby County Commission appellants seeking to block scheduled August 2 referenda on municipal school districts.

The petition in question was filed a week ago by seven members of the County Commission, all representing portions of the City of Memphis. Formally, the petition was a “third-party response” to litigation initiated more than a year ago in a suit originally filed by the then Shelby County Schools board and later joined in or contested by various other litigants.

Last August Judge Mays issued a consent decree involving all the parties to several overlapping and competing litigations relating to the ongoing city/county school merger case. The decree recognized the Norris-Todd Act of 2011 as a basis for moving forward, but Judge Mays declined at that point to rule on the provision of Norris-Todd that allowed for new municipal school districts in Shelby County upon completion of the merger in August 2013.

As Mays said then and reiterates in his new order, that provision of the Act was not “ripe” because yet not acted upon by a county municipality.

The essential questions to be decided on were whether the Commissioners’ petition was appropriate and whether it was “timely” in that it was filed more than the accustomed 14 days after the “original answer:” — i.e., the past previous filing of 2011 to which it could refer.

On the timeliness question, Mays invoked Rule 14 of the Federal Rules of Civil Procedure, which allows judicial discretion to grant an exception. As he put it:

The Court’s August 8 Order deferred a decision about the legality of municipal school districts because no municipality had attempted to create a school district….Requesting leave before the referenda were scheduled would have been premature; until the referenda were scheduled the possibility of harm remained distant and attenuated. By filing their Motion when they did, the Commissioners responded appropriately to the Court’s ripeness concerns. The commissioners’ Motion is timely....

…[T]he constitutionality of Chapters 905 and 970 is a natural extension of the legal issues the court considered and decided in its August 8 Order….Granting the commissioners’ Motion would expedite, rather than unduly delay the litigation.

The new Court order further ruled the Commissioners’ complaint was proper even though it challenged additional statutes besides Norris-Todd because “ the constitutionality of Chapters 905 and 970 {two follow-up pieces of enabling legislation passed in the 2012 legislative session]is a natural extension of the legal issues the Court considered and decided in its August 8 Order. The Commissioners do not advance an obviously unmeritorious claim. ”

Mays also granted the Commissioners’ request for an expedited hearing and scheduled a status conference on the matter for Monday afternoon.

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