“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.