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VOL. 122 | NO. 160 | Friday, August 24, 2007

Juvenile Judge Stay Should Be Lifted, Commission Votes

By Bill Dries

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Shelby County Commissioners voted Wednesday to seek to lift a stay of a Chancery Court ruling that would allow them to appoint a second Juvenile Court judge.

The commission's attorney in the matter, Leo Bearman, is expected to file the motion with Chancellor Kenny Armstrong soon, said Commissioner Deidre Malone.

"The decision has been made. We are moving forward with our attorney asking Chancellor Armstrong to remove the stay," she said.

Malone chaired the special meeting of a committee of the whole which was attended by 12 of the 13 commissioners. Only Commissioner David Lillard, who was out of town, was absent. Malone served as chairman of the session at the request of Chairman Joe Ford.

Armstrong ruled in May that the commission has the authority to create the second judge's position and fill it under terms of a 1967 private act approved by the Tennessee legislature. He ruled in a lawsuit filed against the County Commission by Juvenile Court Judge Curtis Person Jr. But he also stayed the effect of the ruling pending the outcome of an appeal.

Making its rounds

Both sides sought an expedited appeal directly to the Tennessee Supreme Court. But the high court denied the request. A hearing and decision by the state Court of Appeals is expected to take months and possibly a year.

Whoever loses could then appeal to the state Supreme Court.

Lucian Pera, the attorney representing Person in the lawsuit, said Thursday he will oppose lifting the stay.

"We certainly will oppose that," Pera said. "My view of the law would be that Chancellor Armstrong doesn't retain jurisdiction at this point, that jurisdiction is in the Court of Appeals."     

It was Malone who pushed for the second judge's position shortly after Person won election and took office in September.

Person has said Malone's actions are politically motivated since she backed rival candidate Veronica Coleman in the 2006 non-partisan election. Malone has argued that a second elected judge is needed because such judges can more effectively deal with cases, including a backlog, than the current system of appointed referees.

After Wednesday's meeting, Malone charged Person and other opponents of the second position of political motives.

"I think the court knows that we are well within our legal rights to do this," she said. "I think they are trying to push this to the election year in 2008."

If Armstrong lifts the stay, whoever wins the commission's appointment would serve until someone can be elected by voters in 2008 to fill the remaining six years or so in what would be a full eight-year term of office starting in 2014.

"If Chancellor Armstrong does not remove the stay, we are going to ask for an expedited appeal with the Court of Appeals," Malone said.

That appeal would be of the larger case and not on the issue of the stay.

Jurisdiction questions

The meeting of the committee of the whole included a closed consultation with Bearman in which he offered his legal advice and, Malone said, recommended seeking to lift the stay.

"The case in its entirety is on appeal," Pera said. "I have a lot of respect for Chancellor Armstrong, but I don't understand that he has jurisdiction in the case anymore. The case is before the Court of Appeals. I don't get that."

The argument to Armstrong, Malone said, will be that the number of cases the court hears as well as recent recommendations by the Memphis Bar Association, the National Center for State Courts and data from state officials all justify putting a second judge in place as soon as possible.

"It has evolved into something that is totally different from 1967 (when the private act was adopted)," Malone said. "I will give them that. But clearly if you have a need for seven referees, you could have a second judge."

Person, who voted for the private act as a newly elected state senator in 1967, has argued a second judge would create "chaos" because Juvenile Court cases require a more centralized court than adult criminal and civil cases because of the issues they deal with.

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