VOL. 122 | NO. 182 | Wednesday, September 26, 2007
Second Juvenile Court Judge Position Hinges on Appeal
By Bill Dries
"What we currently have in Memphis and Shelby County is that family-related issues are handled by a number of different courts. We have really a fragmented court system that is not always friendly to the families involved, to the attorneys involved. ... This is not an initiative as to how do we do it. It's an initiative about should we do it."
- Shelby County Commissioner Mike Carpenter
There won't be any move by the Shelby County Commission to fill a second Juvenile Court judge's position until the issue is decided by an appeals court.
Chancellor Kenny Armstrong refused to lift a stay of such an appointment Monday afternoon. As that was happening, commissioners, at their bi-monthly session, were opening a new front in the political discussion about changes to the court.
The commission approved on a 10-1 vote a resolution setting up a task force to study the idea of creating a Family Court. Commissioner Joyce Avery voted no. Chairman David Lillard passed. And Commissioner Joe Ford was absent.
"What we currently have in Memphis and Shelby County is that family-related issues are handled by a number of different courts," said Commissioner Mike Carpenter, who sponsored the resolution. "We have really a fragmented court system that is not always friendly to the families involved, to the attorneys involved. ... This is not an initiative as to how do we do it. It's an initiative about should we do it."
Coulda, shoulda, woulda
Juvenile Court general counsel and chief administrator Larry Scroggs disagreed.
"This is another instance of elected officials in the county simply being disregarded and ignored before what could be a very substantive proposed change for this county's judicial system," he told the commission after the vote. "For it to have a real chance, those people who are holding elected positions need to have some input before something like this is put together."
Any proposal to create a new type of court would have to win approval from the Tennessee General Assembly. That could prove difficult, said Scroggs, a former state representative, if judges oppose the move and take their fight to the state capital.
Carpenter countered that the task force will include state legislators as well as judges and county commissioners.
"This is not new. This was in our report in May," he said, referring to the commission's ad hoc committee on Juvenile Court.
The committee recommended numerous changes to the structure of Juvenile Court, some of which won the backing of the Memphis Bar Association and found their way into the recommendations of a study by the National Center for State Courts.
The ad hoc committee was a spin-off of the commission's debate and ultimate passage late last year of a resolution creating a second Juvenile Court judge's position. Juvenile Court Judge Curtis Person Jr. opposes the new position and took the commission to court over it.
Armstrong ruled the commission could create the second position and appoint someone to fill it until an election could be held for the position in 2008.
At issue was the private act approved by the Tennessee legislature in 1967 to allow for the second position. The option wasn't used until last year's commission vote, weeks after Person was elected as the successor to longtime Juvenile Court Judge Kenneth Turner. Person argues only the legislature can create a judge's position and that part of the private act is unconstitutional despite his vote for it 40 years ago, when he was a state senator.
Armstrong stayed the effect of his ruling pending the outcome of an appeal that is certain to go to the Tennessee Supreme Court.
Commissioners sought to have the stay lifted and Monday, Armstrong denied the motion after reviewing written arguments and hearing oral arguments.
"The stay pending appeal remains in place," said Person's attorney, Lucian Pera, after the brief afternoon hearing. At that hearing, he contended the matter was out of Armstrong's jurisdiction and properly before an appeals court.
Attorney Leo Bearman argued for the commission that the stay should be lifted because of a growing backlog of juvenile cases. Person vehemently has denied that there is a backlog requiring a second judge. He also has said commissioners are politically motivated in their quest for a second judge.
Commissioner Deidre Malone, who led the drive for a second judge, wasn't surprised when told of the ruling.
"Well, then, we've done our due diligence in terms of asking. We had to at least ask," she said.
Commissioners already had decided not to appeal a ruling not to lift the stay. They instead will prepare for an appeal that could take up to a year to resolve itself. By then, the matter of an appointment could be moot since it would be another county election year.
There is no hearing scheduled before the appeals court, although Pera filed his brief last week. Bearman has 30 days from last Friday to tell his side of the story in writing to the court.