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VOL. 127 | NO. 134 | Wednesday, July 11, 2012

Schools Referendum Foes Face Heavy Legal Burden

By Bill Dries

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Shelby County Commissioners seeking to stop the referendums on municipal school districts have a heavy legal burden going into Thursday’s hearing on the matter in U.S. District Court for the Western District of Tennessee.

“No judge in his right mind wants to enjoin an election,” Judge Hardy Mays said Monday, July 9, as he emphasized how high the burden will be.

Thursday’s hearing before Mays increases the burden as it limits the scope of an early voting eve decision by him to two parts of the Tennessee Constitution. Suburban voters will go to the polls beginning Friday, July 13, when early voting kicks off.

The best chance for convincing Mays to stop the elections before early voting is to convince him that the Tennessee Legislature violated the state’s constitution in 2011 and 2012 by passing laws on the formation of municipal school districts that apply only to Shelby County.

The legislature can do that, attorneys for the commission argue, but only as private acts and not as general laws.

Attorneys for the state are expected to argue in written memoranda and in court that the municipal school laws apply to other counties as well and are general laws.

Mays said at Monday’s status conference the arguments on those points and his ruling would likely be limited to “the four corners of the statutes.”

Mays also said the questions about Section 9 of the state Constitution appear to be “a cleaner decision” than Section 8.

Section 9 deals with the passage of private acts by the legislature, which requires prior approval by a two-thirds vote of a local legislative body. Section 8 says the legislature has no power to suspend a general law or pass a general law to benefit any particular individual.

So, after a day in court presiding over the trial of a man facing a firearms charge after allegedly waving a gun at a group of people in North Memphis and making an unsuccessful getaway on a bicycle, Mays separated those claims from a more complex and time-consuming claim. The claim is that the formation of municipal school districts would violate the equal protection clause of the U.S. Constitution. Commissioners claim the proposed suburban school districts are motivated in part by a desire to racially segregate public schools in Shelby County.

It is the claim that garnered the most vocal reaction from suburban leaders who denied any racial intent.

Mays told all 17 attorneys gathered in his courtroom that deciding that claim would require lots of testimony including some from experts and he couldn’t possibly render a decision before voting started, even in the unlikely event the proof from multiple sides ended before the start of early voting.

“There is no way the court can decide the issue of discriminatory effect without hearing proof,” Mays told the attorneys.

Mays was clear that there is no guarantee Thursday’s hearing will end with a ruling by him. He told the attorneys he may need to hear more proof on the two claims beyond Thursday but won’t know until all sides make their cases.

They will start with written memoranda on case law and other points that are due before the end of the workday Wednesday.

In seeking to intervene in the case for the suburban cities, Tom Cates and six other attorneys with Burch, Porter and Johnson PLLC filed 54 pages of exhibits and memoranda that represent a head start in the preliminary readings Mays will undertake before court convenes Thursday. Mays granted their motion to intervene.

If Mays finds in favor of the County Commission claims and stops the elections, the more complex claims of racial discrimination and intent are a moot point.

But if Mays doesn’t find in favor of the commission’s claims, the case could move to the U.S. Constitution questions. And the question then becomes what happens to the referendums while those are being settled.

Several of the attorneys indicated Monday they might ask Mays to delay the referendums until that issue is decided.

Cates indicated he would probably want the County Commission to put up some kind of bond to cover the cost of holding special elections later should Mays rule against the commission and in favor of his clients.

Because the referendums are included in regularly scheduled elections, there is no cost to the municipalities for including the ballot questions. If a town or city approved the formation of municipal schools and a tax hike for the schools, the plan is to then hold elections for a school board on the Nov. 6 ballot. Candidates are already pulling petitions for those races in the various municipalities.

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