VOL. 130 | NO. 8 | Tuesday, January 13, 2015
Southwind Annexation Moves Past Two New Judges
By Bill Dries
Chancellor Oscar Carr has been on the bench in Chancery Court four months and he’s already had the kind of case his judicial colleagues warned him about at his formal swearing-in ceremony last week.
Gov. Bill Haslam swears in Chancellor Oscar Carr at the Shelby County Court House last week.
(Daily News/Andrew J. Breig)
“Welcome to the arena,” former chancellor and current Tennessee Appeals Court Judge Arnold Goldin said Thursday, Jan. 8, during at the ceremony at the Shelby County Courthouse.
Goldin was referring to Carr’s decision to issue a temporary restraining order late last year that temporarily and momentarily halted the city of Memphis’ plans to proceed with the long-litigated and delayed annexation of the Southwind area.
Chancery Court is the trial court venue for most political and government-related disputes that find their way into court based on state law.
Goldin termed Chancery Court the place where “the most difficult issues in our community” are found.
“You will be both praised and vilified,” he told Carr.
A day after the courthouse gathering that included Tennessee Gov. Bill Haslam, the case was still moving, with a ruling by the Tennessee Appeals Court on what happened after Carr issued the restraining order and recused himself.
The appeals court ruled Friday that when the case went in November to Chancellor Jim Kyle, the other new chancellor in the three-judge court, he too should have recused himself.
That’s what Southwind residents trying to stop the annexation wanted as well, citing Kyle’s representation of the city of Memphis in other matters. And as a state legislator, Kyle had voted on and debated state law involved in the court case.
Kyle disagreed, kept the case and dissolved the temporary restraining order. The Southwind residents appealed.
Kyle argued that he represented the city on matters unrelated to the annexation and that his interest in the case as an attorney for the city and as a state legislator was not greater than any other citizen.
“Theoretically, every judge in this judicial district who owns real property in the city, you could say, has an interest over and above anyone else in the outcome of this case,” Kyle said in court as he denied the motion for his recusal.
The appeals court, in a ruling written by Judge Steven Stafford, ruled last week that Kyle should have recused himself.
“Chancellor Kyle has a continuing business and fiduciary relationship with the city of Memphis that goes far beyond the relationship of ordinary citizens to the city,” Stafford wrote later, quoting the standard from past court cases. “Although we do not suggest that Chancellor Kyle is unable to put his professional relationship with the city of Memphis aside in order to fulfill his role as an impartial judge, under these circumstances, ‘a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.’”
Attorneys who are elected or appointed to the bench have 180 days from taking the bench under state law to wrap up any active cases in their law practice. Carr and Kyle are still within that period.
Kyle, a partner in the law firm Domico Kyle PLLC, resigned his state Senate seat to become a chancellor following his election to the court in August. Carr, a partner in Glankler Brown PLLC, was appointed by Haslam to the Chancery Court vacancy created by Haslam’s earlier appointment of Kenny Armstrong to the state appeals court effective Sept. 1.
Since the temporary restraining order’s duration was only 15 days, the appeals court ruled that the possibility of vacating Kyle’s order dissolving the restraining order was a moot point. That means the city’s annexation of Southwind remains a done deal unless or until a court decision on the full case concludes otherwise.
The appeals court sent the case back to Chancery Court with an order to transfer it to a different chancellor.
With Kyle and Carr recused, that leaves only Chancellor Walter Evans.
Evans had the case originally when the same appeals court in a July ruling, also written by Stafford, reversed Evans on an injunction Evans granted that prevented the city from annexing Southwind until a moratorium on new annexations expired.
In that part of the case, the appeals court said the moratorium was a significant change in the law but also added that the terms of the moratorium enacted by the Tennessee Legislature clearly applied to future annexations after the city’s move to annex Southwind and a consent order between the city and Southwind residents.