’Twas a Famous Victory

The state Supreme Court declares Herenton et al. the winners over Chapter 98.

by Jackson Baker

It was a great victory,” said Memphis Mayor Willie Herenton. “Politicians ought not be claiming victory over something like this,” said Shelby County Mayor Jim Rout. And that little piece of slant dialogue (the lines were delivered independently of each other as sound bites for TV) offered all the evidence anybody needed as to who felt like a winner and who didn’t last week when The Greatest Issue of Our Time (as some of us pundits had come to regard it) came to a temporary – but resounding – resolution.
A terse one-paragraph proclamation issuing from the Nashville chambers of the state Supreme Court last Tuesday ended the five-month reign of Chapter 98 over the consciousness of statewide politicians and any number of ordinary citizens

Mayor Willie Herenton

(especially those with Shelby County zip codes). Dead was the stealth bill that virtually ended major cities’ ability to annex adjacent territories and gave those territories the means to become instant cities themselves.
The ruling came not long after noon, Nashville time, exactly two weeks before the residents of six Shelby County suburbs were about to vote in favor of incorporation. Just as special Fayette County Chancellor F. Lloyd Tatum had ruled two weeks earlier, the five-member Supreme Court found that the contents of Chapter 98 – specifically the key last-minute amendments that for a calendar year would reverse the power relationship between cities and suburbs – were impermissibly broader than the published caption of the bill, which seemingly had only to do with distribution of in situs tax revenues and the timing of elections. Technical matters to nod the head.
Immediate reaction to the verdict (the reasoning for which the Court promised to spell out later) was curiously unbalanced. On the one hand, there was celebration, even euphoria; on the other, something close to resignation. No one was more carried away than Herenton, who dashed to the first-floor City Hall auditorium and interrupted a city-council committee meeting with the news. He got a standing ovation, followed by handshakes and embraces.
If the mayor seemed to be playing the role of conquering hero, he may, after all, have had reason to. Faced with the symbolic – and actual – death of his city’s traditional prerogatives, Herenton refused to go gently into the acceptance of a fate that some others deemed inevitable (especially after a Nashville chancellor had blithely tossed off the first legal challenges to Chapter 98 in September). The Memphis mayor remained stuck at the earlier stages of rage and denial, and never strayed too far from those emotions – not even when he moved into the bargaining stage, with his “Formula for Fairness” proposals for revising tax rates across the board in Shelby County. (The bargaining was entirely on Herenton’s terms, after all; his moratorium on infrastructure development in the suburbs faced the prodigal New Towns with the prospect of having their water – quite literally – cut off.)
The mayor’s anger about Chapter 98, always close to the surface, would erupt even as he made the rounds of the media venues Tuesday evening, offering them sound bites and generous portions of his delight. When WREC’s Kenny Bosak made bold to challenge the mayor to debate about the fate of Whitehaven since its annexation by Memphis a quarter-century ago, Herenton responded brusquely. “What the hell kind of question is that?” he said. And “hell” and “damn” and “stupid” peppered the rest of his answers to Bosak, whose educational background and very right to ask such questions the mayor challenged.
Meanwhile, Rout was making the media rounds, too, looking and sounding

Mayor Jim Rout

either hangdog or conciliatory, depending on the observer. The Shelby County mayor, who had striven to avoid taking a pro- or con- position on Chapter 98, renewed his calls for the various communities to “work together” and avoid what he frankly termed an “exodus” to points outside of Shelby County. Once again, he touted his ongoing Commission on Alternative Futures, a mixed group of city/county, private-sector/governmental appointees bent on implementing what Rout and various political and administrative surrogates were now calling “regionalism.” (The word “regional” bid fair to become the predominant buzzword among Shelby County Republicans.)
Throughout the Chapter 98 crisis, Rout had been joined in his reticence to take a position by Governor Don Sundquist, his fellow Republican, and, curiously enough, by the county’s reigning Democrat, U.S. Rep. Harold Ford Jr. The bashfulness of Sundquist – who kept saying that he would keep his distance from what was a “legislative” matter – and of Rout was understandable. Though their constituencies included the city of Memphis, where sentiment against Chapter 98 was unmistakable, it was no secret that the bedrock of support for both of these GOP eminences was among the newly teeming – and heavily Republican – suburbanites of outer Shelby County. Among, that is, the very people who were rushing to proclaim the age of Independence and New Berryhill and New Forest Hills and the rest of what Herenton so cursorily dismissed as “toy towns.”
The case of Rep. Ford was different. The assertive up-front scold who, earlier in the year, had been more than outspoken about what he saw as the failure of both local mayors to exercise their authority on behalf of more summer jobs for the inner city, and who had chastised Sundquist for the claims of his state welfare initiatives, was suddenly a model of deference. “I hope the mayors can work this out,” was the most Ford would say, and he pointed out that Chapter 98 and the issues of annexation and incorporation were state and local concerns, not federal ones – a point that, of course, was technically true. Echoing Sundquist and Rout, the young congressman would go on to insist that the matter was “in the hands of the courts.”
Harold Ford Sr., the current congressman’s namesake, predecessor, and – no one doubted – chief adviser, was meanwhile sounding sympathetic to the

Congressman Harol Ford Jr.

suburbs in his conversations with intimates. (Yes, yes, the same man who in 1994 had referred to “East Memphis devils.”) It was part of a strategy of “outreach” for the former congressman, is how one friend put it, but he would add that, of course, neither one of the Fords was exactly nutty about the prospect of jumping on the same bandwagon with Herenton, the Ford clan’s political rival in the inner city and still the putative opponent for Memphis mayor in 1999 (although the interest of the senior Ford, now a business consultant, in the mayoralty was said to have banked even before the current annexation/incorporation controversy).
The upshot of it all was that, for this political reason and that, Herenton had the laurel wreaths to himself. His political adversaries grumbled privately about the attribution to him of such adjectives as “Churchillian.” But Herenton had clearly demonstrated an effective combination of tenacity (his hardball sanctions against the suburbs and a certain developer or two), eloquence (he was given high marks by a joint legislative panel in Nashville for his defense of urban prerogatives there), and initiative (the “Formula for Fairness,” which, whatever its possible fiscal vagaries, at least got a dialogue started).
Herenton’s holding of the line against Chapter 98 helped to create that very line and to stem a potential retreat on the part of other municipalities. By engaging an assortment of different blue-chip legal firms, he had not only stiffened the legal resistance to the incorporation bill but ensured the quality of presentations in court.
When facing a fight, real or potential, the former Golden Glover has always liked to evoke boxing metaphors, and the upshot of the Chapter 98 battle was that he had won clear decisions over the rest of the local political field.
And in the process he may have kayoed the very idea of political opposition in 1999.
n The advocates of suburban incorporation were not the only losers in the legal battle over Chapter 98. The status quo in Nashville took a licking, too. It was widely predicted by proponents of incorporation that the Supreme Court could not rule against the bill on grounds of improper captioning. Else, as former Shelby County lobbyist and incorporation bellwether Charles Perkins put it, the courts would have to disqualify half the legislation that got passed in Nashville.
And Nashville chancellor Irwin Kilcrease’s almost casual rejection in September of the first suit against the incorporation bill (along with his disinclination to hear testimony about urban consequences from Herenton and others) reinforced the established view that legislative acts, whether stealthy or not, would receive the widest possible judicial latitude.
Guess again, said the Supreme Court. And one consequence of the Court’s strict constructionism is that every bill in the forthcoming session will be vetted to make sure that it corresponds with those portions of the state constitution, cited by Judge Tatum and alluded to in last week’s decision, that insist on accurate titling and full disclosure in legislation.
In the new climate of truth-in-packaging, no one – not Lt. Gov. John Wilder of Somerville nor State Senator Tom Leatherwood nor any other proponent of Chapter 98 – has suggested that the bill, whose true contents were unknown to most of those who voted for it last April – will be reintroduced.
And not only Herenton and the city lobbying contingent but the full component of the Memphis City Council will be on hand in Nashville as the 1998 General Assembly gets under way in January – with issues of annexation and incorporation sure to be brought to the fore.
n U.S. Rep. Ed Bryant – who, the last time we looked, was a card-carrying Republican – will be the speaker before the Germantown Democratic Club at the Breadbasket Restaurant on West Street this Saturday at 8:30 a.m. n

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