Thursday, April 26, 2012

Krelstein Out, Winchester In as County Commission Changes Redistricting Lawyers

Posted By on Thu, Apr 26, 2012 at 4:40 PM

Chancellor Arnold Goldin, who must decide the Commissions redistricting case
  • Chancellor Arnold Goldin, who must decide the Commission's redistricting case
The still unresolved question of how to redistrict the Shelby County Commssion, which has dragged on for months and tied commissioners and various county support staffs in knots, has risen to an even more complicated level.

Lawyer Ron Kreslstein, the special attorney hired at year’s end by Shelby County Attorney Kelly Rayne to represent the County Commission in pending hearings before Chancellor Arnold Goldin, has been asked to withdraw. The action came as a result of a vote by the Commission last month insisting that requirements of the county charter be defended in court.

Krelstein had indicated that he intended to make the case for acceptance of a single-member redistricting plan, 2-J, on the grounds that it had earned at least seven votes on three different readings, which is all that state law requires. The county charter, however, specifies that the final vote be a super-majority, or 9 votes.

Hence Krelstein’s departure. The new attorney handling the Commission’s case is Rick Winchester, who has indicated, in a memorandum to Mark Allen of the county attorney’s staff that he will defend the charter’s stiffer requirements.

At issue for several Commission members, including Mike Ritz and Terry Roland, two of the original plaintiffs seeking approval of a single-member plan, is that a striking down of the charter’s super-majority requirement on the redistricting matter could end up affecting other issues currently requiring a super-majority — on new taxation, in particular. Accordingly, Ritz and Roland have withdrawn from their status as plaintiffs.

The third original plaintiff, Commissioner Walter Bailey, is apparently willing to continue with the suit, regardless of how the primacy of state law vs. county charter is argued.

The Winchester memo reads as follows:

TO: Mark Allen
RE: Bailey vs. Shelby County, et al./Status Report


Please accept this as a brief report on the current status on the “redistricting” lawsuit filed by Walter Bailey, Mike Ritz, and Terry Roland. Commissioners Ritz and Roland have now withdrawn as plaintiffs from the litigation. Keith Kyles has filed a Motion to Intervene as a defendant. He has set this Motion so as to be heard at 9:00 a.m. on Friday, May 4, 2012 in Part II of Chancery Court. Mr. Kyles’ contention is that he should be allowed to intervene as a citizen in order to defend the provisions of the Shelby County Charter – more specifically, the provision requiring a two-thirds vote to approve a redistricting plan. I spoke with Mr. Kyles and apprised him of the fact that, as the attorney for Shelby County, I will be opposing any effort to invalidate the County’s Home Rule Charter. Accordingly, I advised Mr. Kyles that unless I advised him otherwise, I did not object to his appearance in the litigation. I do not know whether Mr. Bailey will oppose Mr. Kyles’ intervention or not.

On April 4, 2012, at the invitation of Chancellor Goldin, Mr. Bailey and I appeared for a conference in his chambers regarding the establishment of a timetable for briefing the issues before the Court. It was agreed that Mr. Bailey’s memorandum would be filed not later than April 20, 20112, and that my response would be submitted on or before May 11, 2012. Chancellor Goldin indicated that he would entertain oral argument upon request by either party.

I have now received Mr. Bailey’s memorandum. His memorandum is appended to a Motion for Summary Judgment. This Motion also has appended to it a Statement of Undisputed Facts as required by TRCP Rule 56. I am in the process of digesting his Motion, Memorandum and suggested facts and will be preparing my response during the next two weeks.

In our conference, Chancellor Goldin appeared to be very aware of the legal issues involved and his responsibility to redistrict Shelby County in the event that the Commission fails to do so. I did not understand from the Chancellor that he would have any objection, even at this late date, to the Commission proceeding to approve a redistricting plan, provided, of course, that this was done very expeditiously. In fact, my observation is that chancellors/judges are generally reluctant to become involved in the legislative process, unless absolutely required to do so. Obviously, in this situation, the Court will be required to do so unless a plan is approved very quickly.

Mr. Bailey’s Motion asks the Court to declare the “two-thirds” requirement of the Shelby County Charter invalid inasmuch as he contends that it conflicts with the provisions of TCA § 5-1-1-11. He further asks the Court to declare that the redistricting plan represented by Map 2J to have been passed and, accordingly, to now represent a validly adopted redistricting plan for Shelby County.

I am of the opinion that, absent prompt action by the Commission, the Chancellor has the authority, and probably the obligation, to adopt a redistricting plan. However, I am also of the opinion that this obligation and responsibility of the Chancery Court does not require the Chancellor to invalidate a portion of the duly adopted County Charter, and I will be attempting to persuade the Chancellor accordingly.

I will deliver a full copy of Mr. Bailey’s submissions to you early next week. Please do not hesitate to contact me in the event that you, the County Attorney, or any of the Commissioners have any further questions, suggestions or comments.

Many thanks.

Richard L. Winchester, Jr.

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