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VOL. 124 | NO. 191 | Tuesday, September 29, 2009

Appeals Court Sides With Person in Juvenile Court Lawsuit

By Bill Dries

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The Tennessee Appeals Court ruled Monday 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 the Commission. It also holds that a private act by the Tennessee legislature passed in 1967 which provided for a second judge’s position is unconstitutional.

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 that the appeals court ruled on this week.

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 told The Daily News. “My hope is that we kick it up to the state supreme court.”

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.”

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.”

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 worked 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.

Person voted for passage of the private act in his role as a state legislator before becoming a referee. 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.

“We have concluded, however, that the General Assembly did not create or establish a court because it did not provide for the judgeship,” the appeals court ruled in an 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.

The ruling noted that both sides in the lawsuit agreed that the Tennessee Constitution bars the legislature from delegating its authority to establish and create “inferior” courts including Juvenile Courts. Citing an 1879 Tennessee Supreme Court ruling, Cottrell wrote that the definition of a court includes “a judge or chancellor performing the judicial functions.” The court also ruled in 1916, “The presence of a judge or judges is necessary as an essential element of a court.”

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