VOL. 129 | NO. 126 | Monday, June 30, 2014
Residency Dispute Bigger Than Brooks Decision
By Bill Dries
What surfaced rapidly in June as a Shelby County Commissioner with a residency problem added to other political problems is a complex legal question – and not just for Commissioner Henri Brooks.
Brooks and her attorneys are due in Chancery Court Monday, June 30, to make their case for a court order stopping the commission from acting at its July 7 meeting on a resolution declaring her seat vacant.
An investigation by Shelby County Attorney Marcy Ingram released last week concluded that Brooks does not live in the district she has represented for the last eight years and recommended the commission declare her seat vacant and appoint a replacement. Ingram cited the county charter provision, saying if a commissioner voluntary moves out of his or her district, they cannot hold the office.
She also cited a Tennessee Attorney General’s opinion that declaring such a vacancy is not a judgment that has to be made by a court.
In committee last week, commissioners voted to add the vacancy resolution to the agenda for their July 7 meeting. Brooks voted on the items related to her possible removal and committee Chairman Justin Ford allowed her to, but other commissioners voted to overrule Ford on the matter and not count Brooks’ votes.
The attorney's office is now investigating whether Ford lives in the district he represents.
Those who accept the conclusions of the report and favor declaring a vacancy got a good look at what might await in court as Commissioner Walter Bailey, a veteran attorney, peppered Ingram with questions.
“Is she suggesting to us that her office has the right to make a factual determination that would be binding on the commission?” he began in a series of questions. “And if so, by what authority?”
Ingram said the report and her conclusion was advice to the commission.
“That’s not what I’m asking,” Bailey replied. “Isn’t that a legal determination you are making? And by what authority do you render that legal determination?”
When Ingram said the county charter, Bailey wanted her to cite the specific language in the charter. She said the county attorney’s office advises county government on violations of the county charter.
“I asked about legal determination,” Bailey responded.
Even though Brooks has approximately two months left in her term of office, what happens to her in this instance is a precedent. If the vacancy is declared, it is the reversal of the results of an election that put her in office.
And Brooks’ attorneys argue in order for that to happen, there should be more due process in a process that from their view moves from a report on her residency directly to declaring a vacancy without any kind of finding either by a court or by the commission itself.
“We’ve believed all along that the county … if they were going to go this route should have done one of two things: put the matter before the full commission to make a determination in terms of whether there had been a voluntary removal of Commissioner Brooks’ residence from the district,” attorney Andre Wharton said. “With the action of this committee, the next step would be for us to pursue something on behalf of Commissioner Brooks – legal recourse that the County Commission did not do before this decision.”
Wharton describes a lawsuit in Chancery Court as a way to stop what he termed a “runaway train” that he and attorney Michael Working say is the result of Brooks moving to another address within her district after the end of a relationship.
Wharton questions whether the move by Brooks could be considered “voluntary.”
“I think it is an unprecedented question,” he said of the charter provisions in general on the matter. “I think the charter, as we see it, the words were intentional – voluntary removal of a residence. Those words are loaded words. They are not words that you can reach a decision on with one side of it or with incomplete, inconclusive information. I think there is some ambiguity there.”
Working said at a minimum the commission should set up its own trial to hear both sides.
“This procedure of an internal lawyer – you could probably call that a bureaucrat – just removing an elected official is unprecedented as far as we can see not just in the county but in the country,” he said. “Really what happened today to use a criminal court analogy was that the commission heard from the prosecutor, skipped over the trial – the guilt or innocence phase – and just proceeded to a sentencing of stripping her, declaring the seat vacant.”
But some on the commission argued Brooks could have cooperated with Ingram’s investigation and given her side of the story.
Meanwhile, supporters of Brooks rallied Saturday in North Memphis -- a rally Brooks barred the press from.
The residency controversy is one in a series of events that unfolded rapidly toward the home stretch of Brooks’ run for Juvenile Court clerk on the August county general election ballot.
The other events include her arrest on an assault charge in a parking lot argument at Methodist University Hospital, her resignation the next week from her job at Methodist and a public chastising of a Hispanic businessman for comparing the plight of Hispanics to that of African-Americans.