Pioneering environmental Judge Larry Potter is making a difference in his quiet battle to improve the Shelby County Landscape.
by Mark Jordan photos by Daniel Ball
here was not so much as the banging of a gavel. No sobbing confessions or witnesses bursting into the courtroom at the last possible second. There was none of the inherent drama we associate with court-room proceedings through the TV law dramas.
There was just a ripple of activity at the beginning of the court session, a few muttered sentences that were soaked up by the crowd of bodies packed into Judge Larry Potters tiny Division 14 of Shelby County General Sessions Court, and just like that, the 109-year-old Tennessee Brewery, a historic downtown structure that weeks earlier seemed destined for a date with the wrecking ball, was left standing, a promising candidate for restoration.
It was a sweet victory for Memphis Heritage, the nonprofit historic-preservation group that was trying to take possession of the building but was being thwarted by lingering fire-code fines that had to be paid before any change in ownership could take place. The fire department had agreed at the last moment to escrow the fines, allowing the property transfer to move ahead and much-needed structural work to begin.
It was certainly a clearer and happier outcome than the last time Memphis Heritage was here, same judge, different building. Then it was the Rhodes-Jennings building at the corner of Jefferson and Main Street Mall, a 19th-century store that had fallen badly into disrepair. Memphis Heritage, which owned the facade, wanted to see the building restored. The ownership group, a vague entity that took months to track down, would just as soon have torn it down. After six years of legal wrangling in Potters court, he ordered that the ownership group could tear the building down. Memphis Heritage appealed, and the case now languishes in Chancery Court, though both parties say they are close to an agreement that would give the property to Memphis Heritage for redevelopment.
Not exactly the stuff of Perry Mason, but these are the kinds of cases Potter hears when his environmental court meets every Monday and Friday. For 17 years, the 52-year-old judge has herded the communitys environmental cases involving violations of health, housing, construction, and fire codes into his specially established court. Some have become famous, such as the time he fined perennial protester Jacquelyn Smith for blocking the sidewalk across from the National Civil Rights Museum or the Raleigh woman whose habit of daily laying out 10 pounds of bird seed was attracting so many animals rats and birds that Potter ordered the menu halved. But most fall into the realm of the ordinary: neglected buildings, littered yards, improperly permitted construction. He even locks up convicted prostitutes who fail to get their mandatory tests for sexually transmitted disease.
On this day he hears a steady diet of the usual cases, including one against a man who makes bird houses under his carport despite regulations against such open-air manufacturing operations.
The judge decides the case can be settled between the office of code enforcement and the defendant. He steps outside and lets Donald Seimer, whom he refers to as the general (a reference to his position in the attorney generals office but which in Potters relaxed Southern drawl sounds more like an affectionate nickname), mediate between the two.
The kind of people were dealing with on an everyday basis dont need to be slapped over the head, says Seimer, who, though he represents the prosecutors office, acts more often as a facilitator between parties. These people just need help solving their problems.
The only sign that this court does anything out of the ordinary are the pictures on the wall, framed photographs of dilapidated homes and illegal dumps taken with a digital camera. These are Potters dirty pictures. And its by sitting in judgment over the owners of properties like these that Potter has become a leading figure in a movement to take environmental offenders to task through the legal system. His court, just the third of its kind in the country when Potter established it in 1982, has become the model for similar courts across the U.S. Through example and by working as an unpaid consultant, Potter has helped establish almost 100 such courts across the country, including six in Tennessee, the most in any state.
The existence of these courts has had a tremendous impact on the quality of life around the country, says Ray Empson, president of Keep America Beautiful. A lot of police and courts see these kinds of violations litter, local code enforcement as nuisance or victimless crimes. We think these offenses are the first step in a deterioration of everyday life, and pretty soon these small offenses become big ones. By putting them before their own judge, the courts imbue these cases with a greater significance.
On a recent Sunday evening a dozen people from around the country gather at an elegant Central Gardens home for a farewell supper. Hailing from Ohio, New Mexico, Texas, and Illinois, they are all representatives of state affiliates of Keep America Beautiful, the nonprofit environmental group founded in 1953 to encourage citizens to take personal responsibility for cleaning up their own habitat.
Potter is supposed to be here, too, but is running late. Empson is anxious that he wont get to see the judge before he has to leave.
Empson and his KAB co-workers are in Memphis for a weekend planning session for the the Great American Cleanup, a year-long environmental education initiative scheduled to kick off in April.
There will be neighborhood cleanups, recycling drives, education programs all geared toward raising awareness that people have to take charge of their own environment, explains a planner from New Mexico.
Derided by some more radical groups as soccer-mom environmentalists, KAB is, nevertheless, the largest environmental group in the country, with a pool of more than 2 million volunteers working through its 500 certified affiliates. And it is also the most mainstream. The producers of the famous series of commercials featuring the late Iron Eyes Cody (the crying Indian), perhaps the environmental movements most famous icon, last year KAB was named in a study by the research and consulting firm Wirthlin Worldwide as the most trusted independent environmental group.
KAB has always taken a more practical approach to environmentalism, less dramatic, less confrontational than other headline-grabbing organizations, such as Greenpeace or the Sierra Club.
Its not good or bad if a woman ties herself to a tree, says Edith Heller, state coordinator for Keep Tennessee Beautiful, KABs area arm. I applaud her effort and the commitment that led to it. But I dont think thats the norm. I think most people who consider themselves environmentalists think in more modest, local terms. I think the norm is the 500 people in Oregon last year who planted 10,000 trees.
That pragmatic, think-locally approach fits Potter. From the beginning of his days as the environmental judge, he has worked closely with KAB. He travels the country speaking at KAB-sponsored events, has appeared in a series of videos for the group, and consults closely with them to set up environmental courts in other communities.
In fact, Potter may well owe his position to the group. In 1979, Heller, a longtime KAB member and environmental activist, was executive director of Memphis City Beautiful, the pioneering city clean-up agency that was then a division of the citys sanitation department. She went to a KAB conference in Washington, D.C., where she met the nations first environmental court judge, David Jester of Indianapolis. She was so impressed by the changes he had been able to enact through his court that she brought the concept back home.
I came back to Memphis thinking we could use that. We need that, she recalls.
What Heller thought Memphis needed was a court that, at least on a limited basis, could deal strictly with local environmental issues. Such cases illegal dumping, neglected property, safety and health-code violations had always been matters for the courts. But when mixed in with the more profitable traffic violations and the more serious criminal proceedings, they rarely, if ever, received the attention they deserved.
These cases needed to be set aside and dealt with on their own merits, or else they were going to be lost in the shuffle, Heller says.
Heller was able to build interest in her idea for the court until she reached the ear of then-mayor Wyeth Chandler, who ordered a task force formed to study its implementation.
Because of costs and the way the city court was structured, the task force determined that the environmental court would have to be part of one of the 12 existing divisions of city court and would have jurisdiction over code violations affecting four agencies the health department, the fire department, housing and community development, and construction-code enforcement.
Much more problematic was who they could get to run such a court. None of the sitting judges showed much interest in taking on the unproven field of environmental law, which they saw as largely a collection of littering cases. But Mark Hackett, a member of the task force and then head of the Mayors Citizen Service Center, the city agency that still fields the majority of environmental complaints, thought he knew someone who would make a good fit.
Though he came of age in the radical 60s, the good-humored but a little buttoned-down Larry Potter might have seemed an unlikely choice to head up a pioneering court covering environmental issues. But his conservative, cautious, and fair-to-a-fault nature could go a long way toward winning over detractors. Also, Potter had the requisite love for nature: Born in Nashville, he grew up among the hills and glades and winding waterways of Middle Tennessee on a farm along the Duck River.
Thats really where I became interested in environmental issues, Potter recalls. My grandfather was an individual who was concerned about the river, which was being polluted by a large industry upstream. They basically killed the river. We would later move away from the area, but my grandfather still lived there. He was a very active man uneducated but bright, one of the brightest men I ever knew. We lived on his farm with no electricity, no running water, no indoor plumbing. But even though there wasnt a lot of the material things, those individuals there taught me to respect the land and what it can do for you and how you shouldnt mistreat it.
He graduated from the University of Tennessee-Martin in 1969 and worked as a teacher and a principal for three years before going to graduate school and taking a post in the states department of personnel. In 1975, he followed his younger brothers lead and moved to Memphis to attend law school. Upon graduation in 1978 he worked in the public defenders office (rising to the post of chief public defender after a year), then the city prosecutors office before landing in the city attorneys office. Thats where, in 1982, Hackett found him.
Mark came to me when I was in the city attorneys office, Potter says. He said, Look, Ive got something I want you to read. It was an article published by Keep America Beautiful on the first environmental court in the United States. He asked me, What do you think? And I answered him, This is pie in the sky. Its never going to happen. I told him I did not think the courts would be receptive to it.
But later that year, a vacancy came up on the city court which had to be filled by appointment. As Heller remembers, once it became apparent that Potter would be receptive to the post and to starting an environmental docket in the court, the task force set to work lobbying for his appointment.
In typical apolitical fashion, Potter remembers it differently.
Mark came back to me the day I received the appointment, threw the document I had read on my desk, and he said, Now what do you think?, Potter recalls. It was something I was committed to because code issues had not been dealt with properly up until that time. And it wasnt the fault of the judges. Everybody likes to blame problems on the judges. It was the fault of the system. The system would throw these environmental issues in with criminal cases involving rape, murder, and that sort of thing. And when you go from a rape case to a prohibitive littering case, it does lose something in the transition.
At 36, Potter was already a judge, presiding over city court Division II.
What we did was on Friday afternoons we ran two dockets a day, at 9 a.m. and 1:30 p.m., five days a week the police officers didnt want to come to court, Potter says. Historically you didnt have any cases on Friday afternoon. So we decided to utilize that time and transfer all of these cases into that division of court and permit that judge to hear these cases. And we did that at no cost to taxpayers. We realized we had an existing court. We had some time we could use and thats what we started doing. We operated that way for almost 10 years. We tried different times throughout the week. We played with the docket, and the docket grew to the point that Friday afternoon was miserable. We were running 300 to 400 cases on each docket.
Besides the crushing workload, Potter was frustrated by his lack of power as a city court judge. The year he took the post, 1982, the city had surrendered its criminal jurisdiction, becoming a true ordinance court. This by definition limited his punitive powers to fines, which he, nevertheless, wielded most creatively.
But I did not have the authority to order a man to take mandatory action by injunctive relief, he says. So, I made a recommendation to then-County Mayor [Bill] Morris that the county establish an environmental court with stepped-up jurisdictional authority, giving the court both civil and criminal authority, and to give the court injunctive relief to be able to order someone to take mandatory or prohibitive action.
To help pay for the new court, Potter suggested the county which had just been granted home-rule, allowing it to pass its own laws through the County Commission establish a traffic code which could be overseen in the new court. Fines collected from the traffic violations fines that had previously gone to Nashville would stay in the county and effectively subsidize the new, expanded environmental docket. And so in 1991, Potter moved from city court to general sessions court, hearing environmental cases on Mondays and Fridays and adjudicating traffic violations the rest of the week.
In 1991, we had created at that point in time, to my knowledge, the first environmental court in the United States on a county-wide level with criminal authority, he says. Today, were probably the most active environmental court in the United States. It will eventually get to the point where all we hear are environmental cases.
Potter and his wife Patti arrive late to the dinner party, just in time to see Empson gobble a quick meal and head out the door. It is a rare Sunday night out for the judge, who prefers to stay home on weekends reading, perhaps squeezing in a round of golf. Not that it happens often. This weekend he moved furniture that he had given to a friend, taught a class in Christian history at St. Andrews Presbyterian Church, and otherwise kept busy performing honey-dos, his word for errands assigned to him by his wife.
We might complain, but I think we both like the buzz and activity, says Patti, who first met Potter when she, as a member of the Young Republicans, worked in his first judicial campaign in 1983. I had to go to court for a sin I had committed. He was my judge, and he threw the book at me. After I had gone to driving school, about four months later he called me.
The couple have been married for three years and have three children two from his previous marriage, one from hers.
I didnt realize when I married him how well known he was around the country for his environmental work, says Patti, who explains that the judges true feelings often hide beneath a layer of laid-backness. He is a very passionate man. Everything he does, from golf to household work to exercise to work, he throws himself into completely. He has such a gentle facade you dont realize it.
I am squeezed into the back seat of a sheriffs department squad car between Judge Potter and one of his bailiffs, Jeff, who, armed with a street map and a lifetimes knowledge of the citys nooks and crannies, is the navigator for this trip. Up front are Potters other two bailiffs Mike, the driver, and John, riding shotgun.
We are embarking on one of the judges on-site inspections, weekly drive-bys of certain properties that are before his court. Our first stop today is a South Memphis property owned by Students, Mothers and Concerned Citizens, a grass-roots urban-revitalization group that has fallen on financial hard times. Inspectors claim that a tree on one of SMACCs properties is dead and must come down. The organization claims the tree is fine. Potter has decided to see for himself. When we arrive the tree is stripped of bar, and one limb hangs heavily over the house next door. Potter decides the tree must go.
Judges are often criticized for sitting in chambers far removed from the rest of the world. Early on in his career, however, Potter realized that to make fair and informed decisions he would have to step outside the courtroom that, in effect, to make decisions about the environment, he would have to get out into the environment.
My first on-site inspection was in 1984, and it was a case where this Midtown grocer was accused of selling contaminated food, Potter recalls. The Health Department came in that day, and they did a great job. They had the bloated cans. They had glossy 8x10 photographs. They did a great presentation. And then came the defendants turn to testify, and he reminded me so much of my grandfather a little gray-haired old man. He said, You know this is just wrong. Its an example of big government trying to put a small businessman out of business.
He was basically saying they [the Health Department] were lying, but they had made an excellent presentation. After having heard the proof, I decided what I would do was have all attorneys meet me on-site the following morning. And when I arrived on scene I thought at least the man would have cleaned up, swept the floor. He did not. You just could not believe what that man was selling. It was atrocious.
Potter assessed a $10,000 fine, which the man could not afford. He went out of business, an outcome that bothered Potter until a scientist told him what kinds of bacteria and diseases could well have been swimming in that contaminated food.
He said there was no telling how many people may have died as a result of eating from one of those cans, Potter says. That was the situation where we realized that this court did have the potential to impact the citizens in what I believe is a very positive manner.
The on-site inspections are just one of the creative methods Potter has used to make his job easier and the Memphis environment safer. When he first started hearing environmental cases as city court judge, Potter was dismayed to learn that his punitive power was limited to $50 fines plus court costs.
Even then thered be a great deal of wailing and gnashing of teeth over a $50 fine, Potter says. We did some research and determined that there was a section of the code that permitted the city to charge what was known as a continuing violation, that each day the condition existed was a separate violation for which the court could assess a fine on a day-by-day basis. I explained this to the inspectors. If youve got a problem out there that has existed for 90 days, you should be bringing continuing violations. Well, they started doing that, and suddenly the price to dance went up.
But while Potters ability to fine was strengthened, he still lacked the power to order an offender to rectify a situation. Then he realized he could use the threat of a hefty fine to compel action.
HCD [Housing and Community Development] said this one man had 60 abandoned vehicles on a residential lot and he said he had only 35, which was still a violation but in his mind less of one, Potter says of one case where the promise of reduced fines compelled an offender to clean up. He said they were not abandoned, they were classics that one day he would restore and make a fortune with. Well, I looked at the photographs. These were vehicles that had trees growing out of the cars, no doors, no roofs, no engines, rusted. They were abandoned in my estimation. And when I found the man guilty, I calculated the fines and I said the fines would be $6,525. Well, he looked as if he was going to have a stroke. I looked at him and I said, Sir, would you like to save yourself $6,000? He said, What can I do? Tell me what to do. Ill do it.
Potter told the man that if he removed the automobiles in a months time he could come back and he would reduce the fine.
This situation had existed for three years, and I didnt expect this man to do it. But three weeks later, the back doors of the courtroom blasted open. This man came in literally dragging the inspector. The inspector was shaking his head. He said, You are not going to believe this, judge. Theyre gone. Every blasted one of them. Hes in compliance. I looked down at him and I said, Sir, no matter what you do, dont tell me what you did with those automobiles because you may be admitting to another violation of the law. And I reduced the fine $6,000. He still ended up paying some $500. I couldnt believe it, but it was a win-win situation for everybody.
Not all Potters initiatives have been so successful. One program of which he is most proud is no longer in existence. Taking an unusual step out from behind the bench, in 1993 Potter proposed the formation of the E-Team, an environmental SWAT team.
What we were seeing was that oftentimes an inspector would go out to review a problem, and the report they would come back with would say that this was not an environmental problem they were concerned with because it didnt fall under their agencys jurisdiction, says Potter of the concept, which was developed in one of his think tank sessions with Edith Heller and University of Memphis psychology professors Bill Dwyer and Frank Leeming. They would turn this report into the Mayors Citizen Service Center and they would then report back to the neighborhood that this was not a problem. There was a lack of communication, and what the inspector was really saying was this is not my area. It might be a health problem, but Im a housing inspector.
But the E-Team would be made up of inspectors from each of the four agencies under environmental court jurisdiction. With each on-site visit, there would be no confusion about which agency should deal with a problem.
What we were trying to create were inspectors who were cross-trained, says Potter. We hoped with the experience they received on the job, they would basically train each other. So that each inspector would eventually be well-versed in every aspect of the code, sort of a super-inspector.
Though initially successful, the team soon fell victim to inter-agency squabbles over supervision and turf. It remains one of Potters ambitions before he retires to resurrect the E-Team.
Potter is still overflowing with ideas and programs he would like to enact. As we drive through Memphis neighborhoods, he points out numerous boarded homes and businesses that appear to be in otherwise good shape.
See that property there? Potter asks, pointing to a vacant, boarded residence that appears only a paint job away from looking like a home. If the city could just expand its powers of eminent domain and take these neglected properties, they could turn around and sell them at very little cost to some of these church groups and other organizations which could then fix them and place families in them. Thats something I would really like to see.
Currently on Potters plate, however, are the newly formed Citizens Review Panel (see The Environmental Safety Net on page 20) and an upcoming training session for inspectors.
One of the problems facing environmental court since the beginning is that the inspectors who bring the cases are not trained prosecutors. For much of the courts early days, however, the inspectors were required to attend training sessions taught by Potter and others on how to present a case. The sessions have been discontinued in recent years, and perhaps coincidentally, the number of cases that have come before the court has noticeably dropped.
The big problem with environmental court is that not enough cases are coming before it, says Steve Lockwood, a program director for the Memphis Community Development Partnership who has worked with Potter on the Citizens Review Panel and who recently appeared in his court to testify against a neighborhood business. To be honest, I think the court in general can be very slow in bringing cases to court. I want to be real clear that its not Judge Potters fault. Its the agencies that wait so long to bring these cases to court.
Characteristically unwilling to fix blame but eager to find solutions, Potter says that he can only control what goes on in the courtroom. But he also points out that the environmental agencies are understaffed and, as awareness of these problems increases, overworked. Both the upcoming inspectors training session and the Citizens Review Panel, which only hears cases that have seen no agency action after six months, are responses to this criticism.
But once a case gets before Potter, some say his wheels turn slowly. The most famous example of this may be the Rhodes-Jennings case, which Potter describes as one of the most difficult of his career and the one that gave me most of my gray hairs.
More recently, officials with the local chapter of the Animal Protection Association (APA) have charged Potter with a delay that ultimately cheated justice. In June 1997, Yolanda Newsome was charged with cruelty to animals for failing to provide adequate food, water, and shelter to six horses. When Potter finally heard the case on September 22nd, Newsome pled guilty, but the sentencing phase was delayed five times until February 4, 1998. During this period, the APA, fearing for the horses safety, asked that they be turned over to them. By the time Potter acted on this request, the animals had disappeared. Newsome, who is on kidney dialysis, has yet to serve the 11 months and 29 days he was sentenced to serve; because of his health, the prison would not take him.
Judge Potter failed to utilize the law to protect these animals, says Lynn Resneck of the APA in a fax. He allowed the defendant and his attorney to manipulate the judicial system to the extent to make a mockery of his court.
While he admits the outcome wa unsatisfying, Potter inisits that courtroom proceedings are just that a process that takes time and must be followed.
This was another situation where I was supposed to wave the wand and everyhting is okay. it just doesnt happen that way, he says. This was a criminal proceeding where you have to have an arraignment, allow counsel to prepare a case, hear motions. All that takes time.
Sitting in his office after a day of hearing traffic cases, Potter is unapologetic toward his critics.
Im not perfect, he says. Its a daily fight to find the balance between the individuals and the communitys rights.
He remembers his highly criticized 1993 decision to order the old Arcade Hotel on Calhoun demolished. When the demolition team arrived to begin prep work, the building crumbled before their eyes.
I got a phone call from a reporter, Potter remembers. He said, Did you hear about the building? It collapsed. I just want to get your opinion. And I said, I want you to be sure to print this: I want you to know its good to be right. He asked me what I meant. I told him: I ordered that building demolished and caught a lot of heat from people saying it was hastily made. Obviously it was not.
But in his next breath, he recalls a case in which patience won out.
We had a case today, 608 South Main, where the individual had to spend several hundred thousand dollars to get up to fire code, he says. This guy came in and said, Ill do the work but I cannot do it overnight. And he would come in, and he would show proof that he was repairing it. And the Fire Department was satisfied with that. We worked for about two years on that case, and now we have a piece of property downtown that is a beautiful piece of property. Its a credit to the taxpayers. If we had ordered that property demolished two years ago wed have a vacant lot.
As is his habit, Potter fidgets in his chair, swiveling around, leaning back, and then suddenly shooting forward. Despite the apparent restlessness, Potter is very happy in his current position. He satisfies his wanderlust with on-site inspections and frequent speaking trips. He has no ambition for a higher or different office.
I could be quite happy spending the rest of my days here. I think this is where I can do the most good, he says. Id be much more excited if someone did a study and found there was very little sub-standard property in Memphis, that there were little or no slums, that there were no illegal dumps. Thatd be the thing that excites me. Then maybe I could start thinking about retiring.
The Environmental Safety Net
This Thursday, March 18th, the first regular meeting of the Citizens Review Panel will convene in Judge Larry Potters courtroom on the second floor of 201 Poplar. And with it the citizens of Shelby County will have one more tool with which to fight pollution and neglect in their neighborhoods.
The CRP, made up of citizen volunteers from throughout the city, is designed as safety net for environmental complaints that fall through the cracks. Right now, citizens complaints go through the Mayors Citizen Service Center, where they are then funneled to the appropriate investigating agency.
But if a situation persists and six months go by without the city taking action, neighbors can now bring their cases before the CRP. All they have to do is document their case through photographs and a diary and be willing to swear out an affidavit and testify. If the CRP decides that a case has merit, it can swear out a summons against the offending party and place the case in the environmental court.
The creation of the CRP required an amendment to city ordinances that allows private citizens to bring a case before a criminal court. Currently that power is reserved for public prosecutors.
Initially, the CRP will only have jurisdiction over three neighborhoods Orange Mound, Sea Isle, and Cooper-Young but organizers say that will expand as the wrinkles in the system are ironed out.
This could end up being the hardest-working committee in the city, says Potter.
Appointed by both mayors, the Community Foundation of Greater Memphis, and Memphis Area Neighborhood Watch, these are the original committee members: Diane Kennedy, Lorene Jones, Reginald Milton, John Naylor, Elbert Rich, Robert Taylor, Karen Barksdale, James Bolton, Gracie Danley, Bill Ericksen, and Randy Hendon.
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