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VOL. 124 | NO. 192 | Wednesday, September 30, 2009

Wrangling Expected Before Juvenile Court Ruling’s Appeal

By Bill Dries

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The loser was expected to appeal.

But the Shelby County Commission will have a debate at the very least and possibly a close vote before any appeal of this week’s Tennessee Court of Appeals ruling on a second Juvenile Court judge’s position is approved.

A three-judge panel of the appeals court ruled this week that the Shelby County Commission cannot fill a second Juvenile Court judge’s position.

The ruling not only reverses a Chancery Court ruling and plans by a majority on the Commission, it also holds that part of a private act by the Tennessee Legislature is unconstitutional. Passed in 1967, the law provided for a second judge’s position.

The commission was not unanimous when it voted to create the position but did not fill it.

The move in early 2007 by the commission prompted Juvenile Court Judge Curtis Person Jr. to file the lawsuit the appeals court ruled on this week.

“It’s always been very clear, to me anyway, that this power could never be delegated by the Legislature,” Person, a former state legislator, told The Daily News.

“A court without a judge is an anomaly,” he added, quoting from the court ruling. “It was something that I felt I had to do to protect the court and to determine the future of the court. Therefore it had to be dealt with. It’s a huge constitutional issue.”

Hot air ahead

Person noted it is the second ruling of its kind from an appeals court panel on the issue in the past year. The previous lawsuit involved a city court created in the city of Jellico, Tenn.

“This opinion is much longer and has a lot more detail in it … about why it can’t be done,” Person said.

Commissioner Deidre Malone, who led the charge for the second judge’s position, said Monday she was disappointed by the decision. But she also said she would ask the commission to appeal the ruling to the Tennessee Supreme Court.

“My recommendation is going to be that we appeal,” Malone said. “My hope is that we kick it up to the state Supreme Court.”

The possibility of an appeal came as no surprise to Person.

“Certainly they have that right,” he told The Daily News.

Commission Chairwoman Joyce Avery was opposed to the second judgeship and praised the court’s decision.

“I think the court ruled in a correct manner. I always felt that Judge Person was elected as judge and he should remain as judge without two judges,” Avery said.

The differing opinions that remain are an indication that more debate is ahead before the commission decides on an appeal.

“There will be a lot of debate,” Avery said at the end of a nearly four-hour meeting with a relatively short agenda that did not include word of the ruling. “As you’ve seen today, commissioners like to talk.”

Catch-22

In 1967, Person supported passage of the private act in his role as a state legislator. The legislation unified what had been separate juvenile courts in Memphis and Shelby County.

The commission’s action and the appeals court ruling focused on a part of the private act known as “Section 20.”

The section created a second division of the unified Juvenile Court and authorized the County Commission to appoint a judge to that division.

The legislation also included a clause that said if Section 20 was ever declared unconstitutional, the rest of the legislation would stand on its own.

“We have concluded, however, that the General Assembly did not create or establish a court because it did not provide for the judgeship,” read the appeals court opinion written by Judge Patricia J. Cottrell. “While the General Assembly may have begun the process of establishing a court, it did not complete it. Because we find that Division 2 was not created in 1967, and, in fact, has not existed since that time, we find this argument by the commission inapplicable.”

Appeals court Judges Frank G. Clement and Richard H. Dinkins agreed for a unanimous opinion.

Chaotic times

Malone proposed the second judge’s position following Person’s election in the 2006 county elections. Avery and other critics argued the drive to create another position was a response by those who backed Veronica Coleman-Davis, who lost to Person in the election.

Malone and proponents argued a second and even third or fourth judgeship would not cost the county any more money and could replace a system of Juvenile Court referees who work under the Juvenile Court judge. The system of referees was put in place during the 40-year-plus tenure of the late Kenneth Turner, who did not have a law degree.

Person also served as a referee during Turner’s tenure as Juvenile Court judge.

He argued more than one judge controlling the direction of the court would create “chaos” and insisted the system of referees works well.

Critics of the current system pointed to other criminal and civil courts that operate efficiently with multiple divisions and one judge who serves as the administrative judge, usually on a rotating basis.

But Person points to a footnote in this week’s ruling that he said demonstrates the unique nature of Juvenile Court.

“Judges have duties regarding administrative aspects of the courts,” the footnote reads. “In order for a judge to perform these ministerial duties, it is necessary to know whether the Juvenile Court is composed of one or two divisions.”

Oops, their bad

Commissioner Steve Mulroy, a law professor at the Cecil C. Humphreys School of Law at the University of Memphis, said the opinion was a “strained reading of the 1967 act’s text.”

“We should have the Tennessee Supreme Court decide this matter once and for all,” he said.

Person’s suit also alleged a violation of the state open meetings law following the first vote in late 2006, just weeks after Person won an eight-year term as Juvenile Court judge.

Malone acknowledged some private discussion with other commissioners prior to the first vote.

Weeks later, she moved to rescind the action and take a second vote. The resolution was approved again.

The appeals court ruling held the second attempt was all the remedy that was needed to the violation of the state law.

“Where … the governmental body acts quickly and decisively to correct any mistake in its procedure, the primary goal of the Open Meetings Act has been accomplished,” said the ruling. “We do not believe that the Legislature intended to hinder such correction of error, but rather to encourage it.”

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