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VOL. 127 | NO. 137 | Monday, July 16, 2012

Despite Ruling Schools Case Far From Over

By Bill Dries

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The day after U.S. District Court Judge Hardy Mays ruled the suburban municipal schools referendums will go ahead as planned, most of the 20 attorneys in his courtroom for the ruling were back before him.

The conference Friday, July 13, was to plot what will likely be the rapid movement of the larger case and issues that brought the idea of stopping the elections before Mays in the first place.

And the way forward for deciding the issues involving state and federal constitutional issues is every bit as complex as the different considerations Mays handled in the request for an election injunction by the Shelby County Commission.

“I do not want to decide this matter before Aug. 2,” Mays said as he adjourned Thursday’s hearing.

Mays set a Sept. 4 trial date for the hearing at Friday’s follow-up session.

But as soon as he had ruled on the injunction, Mays began polling the attorneys on when the deadlines would fall for filing motions and memoranda on the case to come on the constitutional questions.

As he did in the run up to last week’s hearing, Mays said he wants to deal with issues involving the Tennessee Constitution first. And if he finds the state laws governing municipal school district formation meet those standards he would then deal with the larger and more complex claim by the County Commission that the intent behind the school districts laws is racial in part and violates the equal protection clause of the U.S. Constitution.

No one involved in the multi-sided legal matter saw Mays’ ruling as a victory.

“It’s all we’ve asked for all along — to be able to vote. We know there are still some obstacles to come.”

–Mike Wissman
Arlington mayor

“It’s all we’ve asked for all along – to be able to vote,” Arlington Mayor Mike Wissman added. “We know there are still some obstacles to come.”

“We’ll just have to demonstrate patience,” Shelby County Commissioner Walter Bailey said at the end of the hearing.

Collierville Mayor Stan Joyner said he was “guardedly optimistic.”

“I’m pleased that he did not enjoin the election. But what happened today certainly doesn’t end in a victory,” Joyner added. “It was better than it could have been.”

Mays rejected the idea of delaying certification of the referendum votes for now. But he indicated he might move to block certification if issues arise in the interim.

The votes would still be counted with totals made public if that happened.

But Shelby County Election Commission attorneys John Ryder and Monice Hagler said a delay in certification could complicate the school board elections to follow on the Nov. 6 ballot in those suburbs that approve the formation of municipal school districts.

The Aug. 2 election day is also the qualifying deadline for candidates in those school board races and the Election Commission has been issuing petitions to candidates in those races since June.

Without certification of the referendum votes by Aug. 20, Ryder and Hagler said there are problems with having November ballots ready and public notices published to meet state specifications. That starts with the certification of candidates for the Nov. 6 ballot and that could happen as late as mid-September.

Mays indicated that to some degree the Election Commission might have that timeline scrambled depending on what he hears next from the different parties in the lawsuit.

Mays also said that if he later finds constitutional violations in the state laws governing the establishment of municipal schools, he won’t hesitate to void the referendum results.

That is the remedy Mays embraced in Thursday’s ruling in place of stopping an election.

“There is a remedy. It’s not an attractive remedy,” Mays said. “The better way is not to stop the election, but to second guess it.”

Before Mays ruled, Leo Bearman, the attorney for the County Commission, said reversing an election was easier said than done politically.

His concern reflects how the case spills over into other domains beyond the courtroom and across the lines that separate one branch of government from another.

Mays focused on keeping the case within its own borders and away from another branch of government.

Memphis City Council attorney Allan Wade questioned, “Why are we proceeding at such a break-neck speed?” referring to the suburban leaders’ fast-moving timeline for municipal school districts.

Mays didn’t think it was a part of his consideration.

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